Individual small-business owners often choose not to use a sole proprietorship entity structure to operate their businesses, because a sole proprietor is personally liable to the business’s creditors. Doing business as a limited liability company (“LLC”), which generally offers the same protection against creditors as a corporation, allows sole proprietors to protect themselves from claims brought by business creditors, because judgements entered against an LLC are not enforceable against the owner’s personal assets. Single member LLC (“SMLLC”) owners must be careful, however, because this protection does not apply if they personally guarantee a debt.

Generally, a sole proprietor may adopt LLC status by applying to the state and paying a small fee. Even though an SMLLC has only one member, it should still adopt an operating agreement. First, adoption of an operating agreement supports the idea that the SMLLC has an “arm’s length” relationship with its single member. In addition, lenders often expect to review an operating agreement when they evaluate loan applications from SMLLCs. Finally, an operating agreement can efficiently facilitate the entrance of another member or provide a smooth transition to another owner upon the death of the single member.

For federal income tax purposes, SMLLC owners generally choose to treat the business as a Schedule C, although they are entitled to elect corporate status. Such an election is seldom made.

Tax advisors may recommend that their clients use a different SMLLC for each business they operate or each piece of rental real estate they own to reduce exposure to creditors, although this practice has become more costly in recent years due to the fact that some states impose an entity tax on each SMLLC a person owns.

Multiple Member Limited Liability Companies

A multiple member Limited Liability Company (“MMLLC) is treated as a partnership for federal tax purposes (unless it elects corporate status) and offers many of the tax advantages of both partnership and S corporation status, while avoiding the tax disadvantages of both entities. An MMLLC member’s liability to creditors is limited to his or her capital contributions, although in many cases creditors will insist that one or more members personally guarantee the business’s debt. MMLLC members should avoid making personal guarantees of entity debt if possible, because such guarantees defeat the asset protection purpose for which the entity was, in part, selected.

No limitations are placed upon the kind of entity that may be a member in an MMLLC. Although state regulations vary, generally a member’s interest in an LLC is not freely transferable, and unanimous written consent by all members is needed in order to make a transferee a full member,

Limited Partnerships

With a general partnership, each partner participates in management decisions and is jointly and severally liable for the partnership’s debts.

A limited partnership (“LP”) has two types of partner and must have at least one of each type to qualify as an LP:

1. A general partner, who is the partner with unlimited liability and Controls partnership decisions; and
2. The limited partner(s), is/ are the partner(s) whose liability is limited to the amount he or she has invested in the business, and who has little or no control over day-to-day partnership decisions.

Business owners can make a corporation, rather than an individual, a general partner, allowing them to avoid joint and several liability for all individuals concerned.

For partnerships holding real estate or oil and gas interests, an LP is a viable entity choice. Notwithstanding, an MMLLC may offer the same advantages relative to creditor liability without the concern for a general partner’s unlimited liability, Business owners should be reminded that LPs are governed by state law, and the rules that govern then may vary from state to state. A tax attorney can assist clients in developing provisions in their partnership agreements that can substitute for state law default governance rules.

Family Limited Partnerships

A family limited partnership (“FLP”) is a limited partnership composed of family members, Such a partnership can be used to transfer interests in a family business or other types of property to a younger generation. From a state law perspective, an FLP is no different from any other limited partnership; an FLP is merely a limited partnership whose partners are all family members or entities controlled by and operated for the benefit of family members.

Usually an FLP is set up with the parents as the general partners and the children as limited partners. A common strategy is to transfer part or all of the family business to younger family members through annual exclusion gifts. Often the fair market value of these gifts is substantially discounted through the use of large discounts that serve to reduce the value of the gift.

An FLP cannot be used principally as a conduit to allocate income to younger family members for purposes of taking advantage of their lower marginal tax rates. Family members are recognized as legitimate partners only if one of the following two requirements is met:

1. If capital is a material income-producing factor, the family members acquire their capital interest in a bona fide transaction, even if by gift or purchase from another family member; or
2. If capital is not a mate rial income-producing factor, the family members have joined together in good faith to conduct a business, some capital or service has been (or is) provided by each partner and they have agreed that each partner’s contribution entitles him or her to a share in the profits.

Before considering an FLP, you should be aware the IRS tends to view FLPs as potential vehicles for tax law abuse. As a result using an FLP as a business structure can subject business owners to substantial risk of IRS audits. Also, you should be mindful that making gifts of partnership interests to children and grandchildren in order to transfer income to younger members of the family, FLPs cannot be used to siphon off earned income of one family member to lower marginal rate members of the same family. The IRS may attempt to unwind transfers of FLP interests to younger family members on various grounds. For example, they may claim that the transferor never parted with the use of or control over the property he or she allegedly transferred to the FLP, (i.e., he or she still owned it at the time of death, so it should be included in his or her estate).

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A packaging factory worker injured at work recently lost all workers’ compensation benefits because drug testing immediately following his workplace accident showed he had marijuana and cocaine in his body. The worker had been loading and unloading skids from a conveyor belt when he was pushed against the belt by a forklift

operated by another employee. Briefly pinned, he suffered lower back disc herniations.

The employer’s zero tolerance drug policy specifically provided that all employees were required promptly to submit to drug testing when injured in the workplace. On the way to emergency medical treatment, riding with a supervisor, the injured employee confided that he would probably fail the drug test because he had used marijuana and cocaine within the past several days. He did test positive.

The employer immediately discharged the employee and denied him any workers’ compensation benefits. The employee’s treating physicians reported that he was no longer fit to lift any significant weight while working and was limited to light duty, or sedentary work, only.

Workers’ compensation benefits are paid to employees disabled by work-related injuries. But “disability” in workers’ compensation cases is not physical disability; instead, it is the loss of the ability to earn wages. This distinction was of immense importance in the employee’s case because the workers’ compensation judge found that the employee had lost his wages not because he had been injured but because he had been fired for violation of the workplace drug policy. The judge never had to reach the issue of whether the employee could work in the future or if the workplace injury had caused a life time disability. Instead, pursuant to workers’ compensation principles, the judge had to find that the triggering event for the employee’s loss of wages was not his injury but his admitted violation of the workplace drug policy and the consequent loss of his job.

Zero tolerance for the use of drugs in the workplace can have lifelong effects on injured workers. Had the packaging worker lost a hand or suffered an even more serious injury, the result in the case would not have been any different. Violation of drug policies can eliminate all workers’ compensation benefits for injured employees, in addition to advising Workers of the terms of their zero tolerance policies, employers should consider educating their workers about the potential for loss of their valuable workers’ compensation benefits.

Resolution of legal issues depends upon many factors, including variations of facts and interpretations of Pennsylvania law. This newsletter is not intended to provide legal advice on specific subjects, but rather to provide insight into legal developments and issues. The readers hould always consult with legal counsel before taking action on matters covered by this newsletter.

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A physician’s obligation to seek a patient’s informed consent is not broad, and a recent Pennsylvania case clarified the doctrine of informed consent and concluded that chiropractors have no obligation to seek their patients’ informed conSent.

In the case involving the chiropractor, a woman suffered a massive stroke following a series of cervical manipulations during chiropractic treatment. The stroke left her in a “locked in” state, where she was fully conscious and cognitively aware but unable to move any body part except her eyes. After 18 months, she died of a serious infection.

Her estate sued the treating chiropractors, claiming that the stroke had been caused by a vertebral artery dissection, and further claiming that the dissection had been caused by the cervical manipulation. One of the estate’s theories was that the woman was entitled to have been advised of the risks of the cervical manipulation prior to the procedure. In effect, the estate demanded that the woman have been given the opportunity of informed consent.

The Pennsylvania Superior Court disagreed, citing a long history of the clear limitations of the doctrine of informed consent. Historically, informed consent has been required only of physicians, and only as to surgical procedures. The development of the doctrine was limited to surgical procedures because it arose at a time when surgical procedures were very inherently risky and when moving a patient’s treatment to the level of surgical treatment was a significant decision. Before invading a patient’s body and rendering the patient unconscious, physicians not faced with a compelling emergency were legally required to secure the patient’s informed conSent.

As surgery became more commonplace over the years, and as other medical decisions became more complex, appellate judges started to question the confinement of informed consent to Surgical procedures. The Pennsylvania legislature stepped in and extended the requirement of informed consent to some additional medical procedures performed by physicians, including blood transfusions, radiation, chemotherapy, the insertion of medical devices and appliances, and “experimental” medicine. Presently, informed consent remains associated with surgical procedures and with those additional procedures legislated by statute.

In the case involving the chiropractor, the Pennsylvania Superior Court denied the claims of the Woman’s estate on two theories. First, the court affirmed the longstanding judicial limitation of the doctrine of informed consent to matters involving Surgery. The court also noted that the judicial doctrine applies to physicians and not to chiropractors.

Next, the court reviewed the legislative extensions of the doctrine of informed consent to the short list of medical procedures performed by physicians and noted that the legislative extensions of informed consent also applies only to physicians. Reluctant to abruptly extend the judicial doctrine to chiropractors, and having no authority to extend the legislative provisions, the court held that the deceased Woman was not legally entitled to any advice about the risks of cervical manipulation prior to undergoing the procedure.

All patients and physicians can negotiate and define the terms of their relationship. Any patient can request information about his or her health care, and if not satisfied by the depth of the provider’s advice, the patient can decline treatment. The doctrine of informed consent formalizes that process when a surgical procedure or the additional procedures included by the legislature are involved. Typically, where informed consent is required, patients sign detailed documents acknowledging their understanding of the risks. Any patient undergoing chiropractic treatment, or any patients receiving general medical treatment, should assume that the treating provider has no legal obligation to initiate discussions of the risks of the procedures. And in the absence of a written informed consent agreement, a patient should presume that the health-care provider is not legally obliged to engage in a disclosure of informed consent. Patients who desire information on risks and options should initiate the discussion.

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The van driver survived the crash and told a disturbing account of the events of the day. After picking up the children and their aides and delivering them to school, the van driver returned the van to the transport company garage and complained that it “shook and shimmied” when she applied the brakes. After arguing with her supervisor about her concerns, the driver was told a mechanic would “look at it.” The driver was given the same van for the end-of-day school pickup and was told the problem had been “fixed.” With the two children and the aides in the van, the driver lost all brake function on a steep street and eventually crashed into a tree at high speed, One of the aides lost her life.

The accident investigation focused on the brake condition and repair. The van company mechanic’s notes indicated that after the van driver complained about the brakes in the morning, he pulled all four tires in the early afternoon. His notes read: “Brakes are fine, adjust up rears and noted measurements of brakes both the front and back.’ The mechanic’s notes included detail on the brake measurements he had made. When he was interviewed after the accident, the mechanic insisted that his notes were accurate and that his inspection of the brakes had been thorough.

But the postaccident inspection of the van was completely inconsistent with the mechanic’s notes and interview. Screws that should have been removed showed no sign of recent removal. It appeared that all the tires had not been removed. One of the brake drums had to be beaten with a hammer for removal, and both rear brake drums were full of dust and debris. The left rear bTake cylinder was frozen and totally inoperable. The right rear brake drum was cracked. The measurements of the brakes noted by the mechanic were significantly different than those taken by the inspectors after the accident.

On appeal from his conviction for involuntary manslaughter and sentence of a maximum off 5 years of jail followed by five years of probation, the mechanic claimed that he had not caused the accident and could not be held criminally responsible. The Superior Court firmly disagreed, noting that the crime of involuntary manslaughter is defined as causing the death of another person as “a direct result of the doing of a lawful act in a reckless or grossly negligent manner.” The court observed that “it has never been the law of this Commonwealth that criminal responsibility must be confined to a sole or immediate cause of death.’ Instead, “a direct result” can come from one of several causes. When reckless or grossly negligent conduct is a direct and substantial factor in another person’s death, the fact that other factors combined to cause the death does not amount to a valid defense. The overwhelming evidence that the mechanic had not properly inspected or repaired the brakes, combined with the falsification of his notes, amounted to reckless and grossly negligent conduct, according to the court.

It is rare for a person not directly involved in a vehicle accident to be held criminally responsible for a person’s death, Had the van driver not been misled about the repair of the brakes, she too could have been similarly charged with involuntary manslaughter. The mechanic’s persistent and apparently false insistence that he had completed a full and competent inspection may have contributed to an unfair result if the falsification actually concealed directives or pressure put on him by the supervisor who argued with the van driver about the brakes. Individuals who are employed in the trucking and transport industries sometimes face difficult decisions when they are expected to drive vehicles their employers do not properly maintain. This case provides a sober reminder that anyone whose actual conduct is reckless or grossly negligent with regard to the safety of a motor vehicle is potentially criminally liable.

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A constable en route to a regional antiterrorist task force meeting was stopped and cited on the Pennsylvania Turnpike by a Pennsylvania state trooper. The constable was driving his personal vehicle, a BMW sedan with black tinted glass in all the side windows as well as the rear window. The court noted that it was undisputed that it was “impossible to see into the vehicle” through any of the side or rear windows. The trooper issued the constable a citation for illegal tinted windows and told him to remove the tint.

The constable appealed his subsequent conviction, claiming that he and all Pennsylvania constables are entitled to drive with fully tinted windows because their cars should be considered “government vehicles.’

The Pennsylvania Motor Vehicle Code provides that “no person shall drive any motor vehicle with any sun screening device or other material which does not permit a person to see or view the inside of the vehicle through the windshield, side wing or side window of the vehicle.” The Code recognizes certain limited exceptions. Hearses, ambulances, and government vehicles are exempted, as are any vehicles for which PennDOT has issued a valid certificate of exemption. Also exempt from the prohibitions against tinted windows are any vehicles for which the driver has a medical exemption, issued by PennDOT after recommendation of the owner’s physician or optometrist.

In denying the constable’s claim to exemption for his BMW as a “government vehicle,” the court carefully noted that its opinion did mot “seek in any way to diminish or impugn the valuable contributions that constables make to the Pennsylvania judicial system.” But the court described constables as “creatures of statute and, perhaps, some remnant common law powers,” and not government employees or officials. Pennsylvania constables are locally elected peace officers, They are not employees of the state, or of the judiciary, or of the county or municipality where they are elected. Instead, they are independent elected officials with limited law enforcement powers. The court stressed the significance of the fact that constables are not directly supervised, as are police and deputy sheriffs. Because constables are not employed, salaried, or insured by any government agency and are not supervised by any authority, the court found that they cannot be considered to own “government vehicles.

Pennsylvania law does not identify a measurable amount of tint permitted in automobile windows. Instead, tint is illegal if, from the point of view of a law enforcement officer, he or she is unable to See into the vehicle. A driver’s use of a vehicle with tinted windows, standing alone, doesn’t justify a warrantless search of a vehicle, but it is one factor among others that can justify such a search.

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