Here is a great article about the Blanco Tackabery Mini-Drome Battle Royale event in the Winston Salem Journal written by Scott Sexton. The first event was very entertaining and a lot of fun. The next event is April 6th at 2:00 at Winston junction. We welcome everybody to come out and watch or participate! The event schedule is:
Owning a business is exciting at times, frustrating at others, but always demanding. There are so many decisions to make on a daily basis, and often, as a business owner, you not only have to make the decisions, but must also roll up your sleeves to make those decisions bear fruit. One decision you should make early as a business owner is determining who will be your trusted advisors to guide you through the legal and accounting issues your business will encounter. Selecting a professional to assist you with legal and accounting decisions is vital to launching and maintaining a viable enterprise, because decisions made early in the formation of a business can have far reaching consequences down the road.
In my practice, I often see clients who chose to handle matters without engaging attorneys and accountants early in the process, and later failed to recognize issues as they arose during the day-to-day operations of the business. Those decisions can cost business owners far more money down the road than hiring the appropriate professionals in the beginning, and can have a significant effect on the ultimate success or failure of the business. I have found those mistakes fall into seven basic categories. This is Pitfall number 5 of 7 common pitfalls I see businesses owners make. Over the next few weeks, I will be sharing all 7 of these pitfalls and proven ways to prevent them.
Types of Intellectual Property — what is intellectual property? Most companies have heard of patents, copyrights and trademarks, but seldom recognize the need to protect certain aspects of the business which safeguard unauthorized use of this type of property by others. Patents protect ideas, concepts, systems, or mechanisms which are novel and unique. Specially licensed attorneys practice patent laws, and the regulations for filing patent applications and maintaining patents require their special attention. Copyrights protect creative expression fixed in a tangible medium. Examples of copyrighted materials are written works, music, and video. Trademarks protect designs, phrases or words which brand a product, service or business. Registration of copyrights and trademarks can provided added protection for a business. Any business that creates a brand, creates an idea or publishes a creative expression should consult with an intellectual property attorney to determine if their idea should be protected from unauthorized use by third parties.
Trade secrets are certain commercial information about a business which is not disclosed to the public, such as a customer list, the McDonald’s secret sauce recipe, or a business plan which must be maintained in secrecy for the success of the company. Contracts with trade vendors, employees, consultants, and anyone else invited into a business and given access to trade secrets should contain special provisions to protect the integrity of a company’s trade secrets.
About the Author
Ashley focuses her practice on Outside General Counsel Services and Business Bankruptcy and Creditor’s Rights Practice Areas. She is an effective, results-driven advocate for her clients. Her background of 30 years in business bankruptcies, distressed debt workouts, problem loan recovery, and real estate title and commercial litigation provides her with a solid foundation of general business, accounting and legal skills.
Blanco Tackabery is excited to recognize the completion of the Historic Ashe Hospital adaptive reuse project. The old Ashe County Memorial Hospital in Jefferson, NC is getting a new life. After sitting idle for years, the building, which is listed on the National Register of Historic Places, has undergone a massive renovation and addition to transform it into affordable independent rental housing for seniors.
To ensure the building maintains its status on the National Register, plans for the renovation were vetted by the NC State Historic Preservation Office and the National Park Service. The new facility’s name stays true to its past – Historic Ashe Hospital. According to Ned Fowler, President of Northwestern Housing Enterprises, the developer for the project, full occupancy is expected during April 2019. There are 46 apartments in the total project, 19 in the old hospital and 27 in the new addition. Apartments include one and two bedroom floor plans, with kitchen, living area, full bath and washer/dryer hookups.
Blanco Tackabery attorney, Deborah McKenney, worked on this project and has a long history of dealing with professionals throughout the Affordable Housing industry to successfully develop and operate all types of community development projects.
By: Caroline C. Munroe, Ryan A. Layton, and Amy L. Chapman
If you thought probate was a legal process that occurred after death to prove a Last Will and Testament, you are not alone. Typically, a Last Will and Testament (a “Will”) is signed by the Testator (the person making the Will and disposing of property his or her property at death) in accordance with state law requirements and formalities, but the Will remains revocable by the Testator so it can be revoked or amended by a Codicil or new Will. In North Carolina, a Will may be filed with the clerk in the Estates Division in the county where the Testator is domiciled, but more often than not, the Will is placed in a fire-proof location for safekeeping and not offered for probate until after the Testator’s death.
Effective August 11, 2015, North Carolina enacted a Living Probate proceeding, which is only available in a handful of states. Despite being over 3 years old, it remains relatively unused and unfamiliar to attorneys, clerks and clients. A Living Probate is a legal proceeding initiated by the Testator to validate his or her Will. The Living Probate does not set the terms of the Will in motion like it would in an historic after-death probate. Thus, it will not result in the qualification of the named Executor or in the distribution of any of the Testator’s assets and it will not eliminate the need for probate after the Testator’s death to qualify the Executor.
The Living Probate process may benefit Testators with blended families who need to address North Carolina’s elective share laws or to preempt challenges from disinherited family members.
| PROS | CONS |
| AVOIDS SURPRISES. Opportunity for Testator, heirs and named beneficiaries to address Testator’s wishes as set out in the Will. | POTENTIAL ATTACKS ON THE TESTATOR. Transparency means full disclosure—“We are leaving everything to the Dog, kids!”—and invites questions about mental capacity. |
| STAY ORGANIZED. Eliminates possibility of lost or hidden Will at time of Testator’s death. | PRIVACY LOST IF ACTION NOT TAKEN. A party must make a motion to seal the Living Probate record in order to make the file and the Testator’s Will private. |
| PREEMPTS LITIGATION AND CAVEATS. Bars interested parties from filing caveats to the validated Will while it preserves a beneficiary or heir’s right to challenge a revocation, new Will or Codicil unless provided with notice.
*Exception to Bar from Caveat to a validated Will if clear and convincing evidence shows the superior court that before and during the Living Probate hearing, the testator was subject to financial or physical coercion and it was so significant that the Testator would not have reasonable disclosed it at the hearing. |
ADVERSARIAL LEGAL PROCEEDING.
There must be an evidentiary hearing even if all of the parties are in agreement as to the Will’s validity Interested parties can appeal the clerk’s decision to the superior court within 10 days of the order to determine: (1) whether the findings of fact are supported by the evidence; (2) whether the conclusions of law are supported by the findings of fact; and (3) whether the order or judgment is consistent with the conclusions and applicable laws. After a Will is validated in a Living Probate proceeding, a party from such proceeding is NOT BARRED from challenging a subsequent revocation, Will or Codicil unless (1) the new instrument is declared valid by a court proceeding under NCGS Section 28A-2B and (2) the interested party is made a party to that proceeding. |
| COSTS. Increased expense to the Testator as there will still be standard fees and costs borne by the Testator’s Estate after death for probate of the “validated Will by Living Probate” to qualify the Executor. | |
| NO STANDARD FORMS— Clerks are unfamiliar with the process so it is a learning process and there is currently no mechanism for transferring the Living Probate file, which contains the original Will, to a new state of residence. Thus, if a Testator completed the Living Probate process in NC, but died as a resident of another state, the Will would need to be offered for original probate here in NC and then ancillary probate in the domicile jurisdiction. |
About the Authors:
Caroline and Ryan are wills, trusts and estate planning attorneys at Blanco Tackabery.
Amy Champman is an estate administration paralegal for the Trusts and Estates group at Blanco Tackabery.
Blanco Tackabery is pleased to announce that Kelly M. Otis and Daniel M. Vandergriff were elected Shareholders of the firm effective January 1, 2019. Kelly’s practice focuses on multifamily housing projects financed with federal low-income housing tax credits, as well as commercial real estate transactions. She has substantial experience assisting purchasers, sellers and developers with the acquisition, development, financing, sale and lease of commercial real estate.
Daniel has broad experience with a variety of renewable energy transactions, including negotiating purchase and sale documents and handling complex tax equity and debt financing projects located nationwide. His practice focuses on helping developers and sponsors navigate the complexities of project acquisitions, financing structures, regulatory and utilities issues and environmental due diligence.
Blanco Tackabery is pleased to be sponsoring the Mini-Drome Battle Royale. Key information about this event are:
For over fifty years the HUD Section 202 program funded the construction of housing and the provision of supportive services for elderly households. The original program authorized federal direct loans with below-market interest rates and little to no rental subsidy to serve moderate-income elderly and disabled families. The program evolved through several financing and rental assistance phases before shifting to capital advances, 40-year forgivable loans, with rental subsidies provided to very low-income elderly families through project rental assistance contracts (“PRAC”). Aside from a modest FY2018 appropriation, Congress last funded new construction of Section 202 units in FY2011. As a result, preservation of the existing stock of Section 202 capital advance units and supportive services is critical to maintaining this housing resource for the growing population of very low-income elderly families.
In 2000, Congress acted to preserve a large portion of the Section 202 direct loan inventory by authorizing the repayment and refinancing of those Section 202 properties originally financed with high interest rate loans, which were generally constructed between 1975 and 1992. The program required the owner of a direct loan project to record a long-term use agreement on the property and demonstrate that refinancing would produce debt service savings, a low bar given the low interest rate environment of the early 2000s. Debt service savings could be used to provide additional supportive services and other uses beneficial to the residents, as permitted by the statute. Refinancing also generated funds for needed repairs.
In 2010, Congress expanded the scope of the preservation effort by authorizing the repayment and refinancing of pre-1975 Section 202 direct loans with original interest rates below six percent to allow property owners to address the physical needs of those projects. The expanded program permitted an increase in debt service to fund capital improvements. Accordingly, the statute allowed an increase in Section 8 rents to support the refinance; however the overall increase was limited to mark-up-to-market or mark-up-to-budget rent increases under the Multifamily Housing Reform and Affordability Act. In addition, HUD required any rehabilitation to address significant repair needs and qualify as a substantial rehabilitation, as defined by FHA.
The bulk of the existing Section 202 capital advance properties have operated for at least ten years, and the oldest are approaching twenty-five years of age. As a result, many of these properties require major repairs and updates. Because capital advances do not amortize and PRAC rents are sized accordingly, the financing challenges associated with preservation are somewhat unique but align more closely with the needs of pre-1975 Section 202 direct loan properties as expenses for debt service are expected to increase as a result of rehabilitation.
Through the 2018 Consolidated Appropriation Act (“the 2018 Act”) Congress expanded the Rental Assistance Demonstration Program (“RAD”), which allows the conversion of certain types of housing subsidy to Section 8 assistance, to permit conversion of PRACs to long-term Section 8 project-based rental assistance contracts and project-based voucher contracts. In addition, the 2018 Act authorized the subordination and/or restructuring of existing capital advances, as necessary, to facilitate restructuring. These changes are designed to allow Section 202 capital advance owners to leverage their rental assistance to make necessary repairs and updates.
HUD is currently drafting a much-anticipated revision of the RAD Notice, which will detail the program requirements for “RAD for PRAC” as a Component 2 RAD program. Congress did not cap the number of units that may convert under Component 2, so the selection process is not competitive. RAD is revenue neutral: it permits conversion of existing subsidy but does not provide additional funding. As a result, this program presents some unique challenges that need to be addressed in the RAD notice:
PRAC rents were not designed or permitted to support an amortizing mortgage. Even if the existing capital advance “debt” is subordinated or restructured rather than refinanced, Section 8 rents based on current pre-RAD budgets without debt service would limit a Section 202 owner’s ability to support loan amounts necessary to provide adequate funding for transaction costs and necessary repairs/rehabilitation. While the introduction of other sources of financing, including soft loans and low-income housing tax credits, will defray some of this expense, the availability of subsidy and the method of determining rents, both initially and over time, will play a key role in determining the feasibility of this program for individual projects.
The 2018 Act authorizes the subordination and restructuring of the existing Section 202 capital advance, which currently includes obligations under a note, mortgage/deed of trust and use agreement. Subordination and restructuring of the capital advance must be considered within the context of acceptable project ownership structures, which Congress expanded in 2000 and 2010 to include for profit limited partnerships with various types of nonprofit general partner control. A shift to for-profit ownership will be required for capital advance properties to take advantage of some financing tools. However, the entity that will become the “debtor” under any capital advance note and deed of trust/mortgage, the obligations of the continuing capital advance, and tax implications related to those obligations, must be addressed within the context of potential changes in ownership structure.
Given that many Section 202 capital advance projects include fewer than fifty units, aggregation of multiple facilities into a single scattered site project, if permitted, would distribute certain fixed expenses and increase the feasibility of the RAD for PRAC program for some projects. Authority to transfer projects would further encourage consolidation and create an opportunity for cost savings. Transfer authority would also provide an opportunity for some smaller sponsors and owners that no longer desire or are no longer equipped to continue in those roles to exit the program and facilitate transfer of properties to those with the tools to take advantage of the RAD for PRAC program.
By statute, the 202 program requires owners to provide supportive services considered essential for elderly residents to continue to live independently. Some owners receive grants to fund those services. For others, employment of a service coordinator is considered an eligible cost under the PRAC. Inclusion of those expenses in the Section 8 operating budget is vital to the continued provision of those services.
About the Author
Susan provides counsel and assistance with housing, community development, and regulatory matters, focusing on HUD/FHA-insured loans and asset management issues.
Blanco Tackabery attorney, Chris Seamster, has been named to the Winston Salem Chamber of Commerce Under 40 Advisory Board. Chris concentrates his practice in dealing with all aspects of corporate/business law, securities law and intellectual property, including corporate finance. Chris will serve for two years on the board. The Advisory Board Members represent a variety of companies, organizations, and industries which helps to shape the Winston Under 40 goals and initiatives through a variety of perspectives. The Board helps plan the calendar of activities for the Winston Under 40 program and provide insight on ways to connect with and retain young professionals in our community.
Owning a business is exciting at times, frustrating at others, but always demanding. There are so many decisions to make on a daily basis, and often, as a business owner, you not only have to make the decisions, but must also roll up your sleeves to make those decisions bear fruit. One decision you should make early as a business owner is determining who will be your trusted advisors to guide you through the legal and accounting issues your business will encounter. Selecting a professional to assist you with legal and accounting decisions is vital to launching and maintaining a viable enterprise, because decisions made early in the formation of a business can have far reaching consequences down the road.
In my practice, I often see clients who chose to handle matters without engaging attorneys and accountants early in the process, and later failed to recognize issues as they arose during the day-to-day operations of the business. Those decisions can cost business owners far more money down the road than hiring the appropriate professionals in the beginning, and can have a significant effect on the ultimate success or failure of the business. I have found those mistakes fall into seven basic categories. This is Pitfall number 4 of 7 common pitfalls I see businesses owners make. Over the next few weeks, I will be sharing all 7 of these pitfalls and proven ways to prevent them.
Proper Documentation of Employees – Federal laws require all employers to obtain copies of certain documents at the time of hire, and to maintain copies of those documents on file for the duration of the employment. Best practices should be adopted for all incoming employees to ensure proper documentation is received. In addition, routine audits of employment records should be performed to make sure a company’s records would pass muster in a federal audit. Failure to adhere to these laws can result in the business being shut down, and even criminal charges in some circumstances. Consulting with an HR professional or an employment attorney on proper procedures and best practices in hiring and record retention is advisable.
Employment Contracts – North Carolina is an “at will” state, which means employees may be hired and fired, at will, for any cause or no cause at all. Accordingly, most employees do not have written employment contracts. There are two exceptions. The first would be a union contract where a collective bargaining agreement governs the employment relationship. The second would be a key management position where a written offer of employment is agreed to between the company and the employee. The laws which govern what employment contracts can and cannot provide are constantly evolving. A business wanting to use a written employment agreement to retain top executives in its business should have an employment attorney draft a standard employment agreement to ensure the employment laws regarding restrictive covenants and non-competes, confidentiality, termination, and the like are adhered to. If you have a written employment agreement that you have been using for a number of years, it is good idea to have it reviewed every few years by an employment attorney to make sure the provisions in it are still enforceable.
Employee Policy Manual – Since most employees do not have an employment contract to govern the terms of their employment, any business that employs more than three people in the business should have an employee policy manual to guide the employment relationship. The employee handbook can cover an array of issues. One important area to address is use of computer systems and the internet. Having policies in place regarding use of a computer terminal at work by employees has been increasingly important in the age of cyber security. An HR consultant or employment attorney can prepare an employee handbook, or review and update any current policies and procedures a company may already have in place.
About the Author
Ashley focuses her practice on Outside General Counsel Services and Business Bankruptcy and Creditor’s Rights Practice Areas. She is an effective, results-driven advocate for her clients. Her background of 30 years in business bankruptcies, distressed debt workouts, problem loan recovery, and real estate title and commercial litigation provides her with a solid foundation of general business, accounting and legal skills.
Blanco Tackabery is pleased to announce that we are implementing a Matching Charitable Gifts Program. Blanco Tackabery recognizes the importance of charitable nonprofit organizations. This is a way for the firm to partner with employees to make a meaningful impact on the community. Some of the organizations the firm helps support are:
Second Harvest Food Bank
Winston-Salem/Forsyth County Arts Council
United Way of Forsyth County
Forsyth County Backpack Program
NC Bar Legal Feeding Frenzy
Blanco Tackabery is proud to announce that four of their attorneys have been named to the 2019 edition of Super Lawyers© in North Carolina. The following four attorneys have been chosen by their peers in their respective practice areas:
Elliot Fus
Business Litigation
James Goodwin
Rising Stars: Real Estate
Ashley S. Rusher
Bankruptcy: Business
Neal E. Tackabery
Estate Planning & Probate
Daniel M. Vandergriff
Rising Stars: Energy & Natural Resources
Every year, Super Lawyers evaluates attorneys across the state. Each candidate is measured against 12 indicators of peer recognition and professional achievement. The multiphase selection process is rigorous and methodical. Only about five percent of attorneys are selected for the list.
Elliot A. Fus
Ashley S. Rusher
Neal E. Tackabery
Daniel M. Vandergriff
James F. Goodwin
Owning a business is exciting at times, frustrating at others, but always demanding. There are so many decisions to make on a daily basis, and often, as a business owner, you not only have to make the decisions, but must also roll up your sleeves to make those decisions bear fruit. One decision you should make early as a business owner is determining who will be your trusted advisors to guide you through the legal and accounting issues your business will encounter. Selecting a professional to assist you with legal and accounting decisions is vital to launching and maintaining a viable enterprise, because decisions made early in the formation of a business can have far reaching consequences down the road.
In my practice, I often see clients who chose to handle matters without engaging attorneys and accountants early in the process, and later failed to recognize issues as they arose during the day-to-day operations of the business. Those decisions can cost business owners far more money down the road than hiring the appropriate professionals in the beginning, and can have a significant effect on the ultimate success or failure of the business. I have found those mistakes fall into seven basic categories. This is Pitfall number 3 of 7 common pitfalls I see businesses owners make. Over the next few weeks, I will be sharing all 7 of these pitfalls and proven ways to prevent them.
Payroll Taxes – For some reason, when a company is experiencing financial distress the first thing it does is steal from its employees and the federal and state taxing authorities by failing to escrow and then remit payroll taxes. Make no mistake that is exactly what the company is doing if it withholds payroll tax from its employees and fails to pay it to the taxing authorities. It is not only bad form, it is a crime. The taxes withheld from employees’ pay are called the trust fund portion of the tax. The taxes the company pays as an employer on payroll are called the employer portion of the tax. There is a 100% penalty for business owners and other “responsible parties” who fail to remit the trust fund portion of the payroll taxes.
By way of example, if the company withholds $10 from Joe’s wages for payroll taxes and owes an additional $12 for the employer portion, but fail to remit $22 to the taxing authority, the business owners, officers, directors, payroll clerk, and anyone else the taxing authority determines is a responsible party will be held personally liable for 100% of the trust fund portion of the taxes, or $10, plus interest and other penalties. Do not mess around with payroll taxes. I advise my clients to always pay the government first. “Borrowing” from the withheld taxes to fund operations is a very slippery slope from which few business owners recover. If personal liability, inability to discharge such taxes in bankruptcy, and possible criminal charges is not enough, it can be a public relations nightmare as well. Tax liens are published in the local Business Journal for all to see. There is a simple solution. At a minimum set up separate bank accounts for the collection of payroll and sales and use taxes, and do not conduct business out of those accounts except for payment of those taxes. In addition, hire a reliable payroll service to remit employer and employee tax reports and taxes to the taxing authorities.
Sales and Use Taxes – Same song, second verse. Like payroll taxes, sales and use taxes are trust fund taxes which create personal liability for responsible persons and potential criminal liability. What’s more, failure to remit sales and use taxes is the fastest way to get a business shut down by the state taxing authority and company assets auctioned off to pay the back taxes.
About the Author
Ashley focuses her practice on Outside General Counsel Services and Business Bankruptcy and Creditor’s Rights Practice Areas. She is an effective, results-driven advocate for her clients. Her background of 30 years in business bankruptcies, distressed debt workouts, problem loan recovery, and real estate title and commercial litigation provides her with a solid foundation of general business, accounting and legal skills.
