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Opinions March 28, 2011

March 28, 2011
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7th Circuit Court of Appeals
Scott C. Cole and Jennifer A. Cole v. Commissioner of Internal Revenue
10-2194
U.S. Tax Court, Judge Diane L. Kroupa.
Tax. Affirms finding that the Coles omitted more than $1.2 million of income and more than $1.3 million of self-employment income from their 2001 joint tax return and that they fraudulently avoided tax liability. The Coles did not show clear error in the Tax Court’s finding that because they did not produce credible documentary or other evidence showing otherwise, that the commissioner’s reconstruction of their income was “reasonable and substantially accurate.” The Coles failed to show that the Tax Court clearly erred in finding that Scott may not avoid tax liability on his income by assigning it to another corporation when substantively his Bentley Group ownership never changed as evidenced by his continued dominion and control over the partnership’s funds.

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Sean T. Ryan v. Dee Anna Ryan
71A03-1009-DR-453
Domestic relation. Reverses denial of Sean Ryan’s motion for relief under Indiana Trial Rule 60(B)(8) regarding the prices set for the sale of real estate as listed in the settlement agreement. The trial court abused its discretion in denying his motion for relief from judgment without hearing pertinent evidence. Remands with instructions.

Roman Catholic Archdiocese of Indianapolis, Inc. v. Metro School District of Lawrence Twp., et al.
49A02-1004-PL-427
Civil plenary. Affirms denial of the Roman Catholic Archdiocese of Indianapolis and Joseph Piper and other parents’ requests for declaratory and injunctive relief and the judgments in favor of Metropolitan School District of Lawrence Township and Concetta Raimondi, as superintendent of the school district, in a suit challenging the termination of a shuttle bus service paid for by the township to the private schools in the township. Indiana Code Section 20-7-11-1 doesn’t mandate that the school district must provide special school bus routes and free shuttle bus services not already in effect for the sole benefit of nonpublic school students.

Arnaldo Trabucco v. Pamela Trabucco
03A05-1003-DR-195
Domestic relation. Affirms the trial court’s use of income averaging to compute Arnaldo Trabucco’s child support obligation. The trial court did not err in using an income averaging approach to calculate his weekly gross income for child support and in including funds set aside for their son’s college and other accounts within the marital estate. Remands with instructions to consider whether the Home Federal IRA and IRA #1491 were consolidated into another IRA and therefore should not have been counted separately. Remands to also provide a detailed explanation of how the trial court arrived at the specific value assigned to a coin collection.

Capitol Construction Services v. Farah, LLC
49A04-1006-PL-354
Civil plenary. Affirms order denying Capitol Construction Services’ motion to dismiss demand for arbitration in favor of Farah LLC. Farah has not waived its right to arbitrate and equity favors the result reached by the lower court.

Steven A. Wright v. State of Indiana (NFP)
20A03-1004-CR-233
Criminal. Affirms convictions of Class A felony and Class C felony child molesting.  

G.F. v. R.F. (NFP)
26A01-1008-DR-395
Domestic relation. Affirms denial of father’s petition for modification of child custody.

Cynthia Taylor v. Community Hospitals of Indiana, Inc. (NFP)
49A04-1008-PL-499
Civil plenary. Affirms summary judgment in favor of Community Hospitals of Indiana after Taylor fell and was injured in the hospital.

Ashley Straub v. State of Indiana (NFP)
92A05-1007-CR-458
Criminal. Affirms convictions of two counts of dealing in a schedule I controlled substance as Class B felonies, and one count of Class D felony possession of a schedule I controlled substance.

Alois Cronauer v. Starke Co. Jail, et al. (NFP)
75A03-1009-PL-496
Civil plenary. Affirms denial of motion for relief under Indiana Trial Rule 60(B).

Kristin M. Escamilla v. State of Indiana (NFP)
45A04-1009-CR-570
Criminal. Affirms sentence following guilty plea to Class B felony dealing in narcotics.

Indiana Tax Court had posted no opinions at IL deadline.

The Indiana Supreme Court dismissed one appeal for the week ending March 25.
 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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