A review of recent developments affecting COBRA rights

Due to the high cost of health care claims and COBRA's status as remedial legislation, COBRA has generated a significant amount of litigation in recent years. While the early COBRA decisions tended to broaden the law in order to provide a remedy to an otherwise uninsured qualified beneficiary, the recent trend in the case law has been to limit the expansion of COBRA rights based on a narrower construction of the statute. Even so, COBRA still represents a legal minefield for employers. As a result, a careful employer will minimize its exposure by monitoring changes in the law and its interpretation and making appropriate modifications to its COBRA documentation and administration. This article discusses some of the more significant recent changes in the law affecting qualified beneficiaries' COBRA rights--and therefore, employers' exposure.     

Commissioner v. Schleier: back to the drawing board on the taxation of employment dispute recoveries

The Court's decision in Schleier leaves the taxation of recoveries arising out of employment disputes, as well as many other types of disputes, in a state of confusion. To be sure, employers and employees now know with certainty that recoveries under the ADEA are not excludable from income under Section 104(a)(2). Recoveries under other statutes, however, including the Fair Labor Standards Act and the 1991 version of Title VII of the Civil Rights Act of 1964, are altogether unclear after Schleier. In the absence of further guidance, employers should consider adopting a more conservative approach to employment dispute settlements by treating settlement payments as taxable income, subject to withholding and employment taxes.     

Proposed regulations to govern private business use of tax-exempt bond financed facilities

For the most part, owners of tax-exempt hospitals and other health care facilities should welcome the issuance of the proposed regulations because they generally clarify and liberalize former law. As pointed out, however, in certain instances the proposed regulations do impose additional requirements not found in current law. Accordingly, in those instances in which exempt facility owners may elect to apply the proposed regulations prior to their finalization, a careful analysis needs to be made of whether the old or new regime would be most beneficial.     

Special report on taxation. New IRS revenue procedure clarifies tax classification of limited liability companies

Although its rules are complex, the publication of Revenue Procedure 95-10 will substantially facilitate the use of LLCs in those states with statutes that permit significant flexibility in the structuring of LLCs. Previously, the only way to assure that LLCs in those states would be classified as partnerships for income tax purposes was to obtain a private letter ruling from the IRS, often resulting in lengthy delays. The new revenue procedure should provide sufficient guidance in the vast majority of cases to allow tax counsel to determine the appropriate treatment for tax purposes without having to seek an IRS private letter ruling.     

From underworld to underground

In the West economically motivated crime is usually perceived as a matter for the police while the performance of the economy is a matter for the political authorities. This paper argues that the growth and evolution of the modern underground economy has made such a distinction obsolete. Not only have the frontiers between the legitimate and the criminal sectors of the economy blurred, but the distinction between the explicitly criminal and the merely informal aspects of the modern underground economy has become largely meaningless. Given the tremendous growth of underground activity, this means that the issue must now be addressed not just on the enterprise level, as a police matter, but on the level of the economy as a whole, by economic policy makers. This in fact is something that many developing countries long ago realized. The paper therefore asks whether developing countries have been any more successful in using monetary, fiscal and balance of payments policy to mitigate the adverse social and economic impact of widespread underground economic activity than have Western countries who have relied mainly on the sanction of criminal law. It concludes that both approaches are deficient in so far as they neglect the degree to which modern underground activity can no longer be seen as a manifestation of deviant economic behavior so much as a virtual economic insurgency against the status quo distribution of income and wealth and the codes of economic behavior which accompany it. However dramatic are the financial manifestations of the spread of enterprise crime, ultimately the challenge it poses must be addressed as the political and ideological level.