Corporate Transparency Filing Deadlines

Corporate Transparency Filing Deadlines

Congress passed the Corporate Transparency Act in 2021.  The Corporate Transparency Act and its requirements took effect on January 1, 2024. Under this Act, certain business entities are required to file a Beneficial Ownership Information Report (a “BOIR”) with the U.S. Department of the Treasury. Specifically, such business entities must file BOIRs, including the information for each beneficial owner, with the Financial Crimes Enforcement Network (FinCEN).

When do I need to file?

The deadline is quickly approaching for any business entity that is required to file a BOIR (a “reporting company”). Required reporting companies formed before January 1, 2024 have a filing deadline of December 31, 2024. For any required reporting company formed on or after January 1, 2024 through December 31, 2024, the filing deadline is ninety (90) days after the effective creation or registration date.  The deadline for any required reporting company formed on or after January 1, 2025 is thirty (30) days after the effective creation or registration date.

After the initial filing, a reporting company must file an updated BOIR within thirty (30) days of any change to the beneficial owners. Examples include, if the company is sold, if one owner sells ownership interest to a new owner, if a beneficial owner has a change of address, or if the management of the entity changes.

Who is a beneficial owner?

A beneficial owner includes:

1. An individual who owns or controls at least twenty-five percent (25%) of the company (such as members, shareholders, or owners of parent companies), or

2. An individual who has substantial control over the company (such as senior officers, managers, or important decision makers). In some cases, an individual may be included under both requirements.

Please note that the company applicant must also be included in the BOIR if the entity was formed after January 1, 2024. If the reporting company was formed prior to January 1, 2024, the BOIR does not require the company applicant information. The company applicant is the person who formed the reporting company, such as by filing the Articles of Organization or Articles of Incorporation.

For more information on beneficial owners, the Small Entity Compliance Guide is located at: https://www.fincen.gov/boi/small-entity-compliance-guide

What happens if I do not file?

If your business entity is required to file a BOIR and you fail to complete the BOIR by the deadline or file false or fraudulent information in the BOIR and do not correct such information, you may be subject to civil or criminal penalties including fines and imprisonment.

How do I file?

Instructions for BOIR filings, instructions for obtaining optional FinCEN numbers, and the BOI E-Filing System are located at: https://boiefiling.fincen.gov/

If you have questions regarding whether your business entity is required to file a BOIR, who is considered a beneficial owner of your business entity, or if you need assistance with filing your BOIR(s), please contact the business attorneys at Anderson O’Brien, LLP.

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How Adverse Possession May Impact Your Property Rights

How Adverse Possession May Impact Your Property Rights

Adverse possession is a legal doctrine that allows a person who occupies another person’s property for a specified period of time may gain title to that property. The law of adverse possession is based on a combination of statutes and Wisconsin Court decisions.

For example, if someone owns a farm or recreational property and a fence was initially placed in the wrong location decades ago, the adjacent property owner may end up owning a strip of land up to the fence line that really is not theirs based on the legal description in the deed. Another example would be if someone places a shed or a structure over the property line, and the adjacent property owner does not complain about it. The person who put the shed on the property may gain title to that portion of land containing the shed.

These issues typically come to light when one of the parties wants to sell their land and has a survey conducted. It is discovered that the boundaries set forth in the legal description of the deed do not match with how the parties have been utilizing the property over an extended period of time.

The most common way that adverse possession is obtained is through actual use of someone else’s property for a continuous 20 year period. To claim adverse possession, the following criteria must be met:

  1. Actual possession: The court will look at how the property is actually utilized. If the property is protected by a substantial enclosure such as a fence, for example, where the property has been usually cultivated or improved, that will constitute actual physical possession of the land that is in dispute.
  2. Hostile Use: The use of the disputed land must be inconsistent with the rights of the true owner of the land.
  3. Open and Notorious Use: The use of the land must be open and visible.
  4. Continuous Use: The use must be continuous for a 20 year period. It should be noted that this 20 year period can be calculated by using the activities of prior owners of the property as well as the current owners.
  5. Exclusive Use: There must be exclusive use of the disputed property by the party claiming that they own the disputed property based on adverse possession.

There are statutory provisions which permit you to interrupt somebody’s adverse possession of your property by filing an affidavit of interruption. There are two other statutory ways that someone could obtain adverse possession based upon a conveyance of title. Those have a ten year statute of limitations, and a seven year statute of limitations respectively. There can be a lot of complexities involved in an adverse possession case.

Adverse possession cases can be complex, very fact intensive, and require witnesses from many years ago to establish how the properties have been utilized. They can be very expensive to pursue in court. It is important to be diligent and to inspect your property to make sure that neighbors are not encroaching on your boundary. Otherwise, you may end up losing a portion of your land through adverse possession.

If you have any questions on these issues please meet with one of our experienced litigation attorneys. They will help you protect your property and your rights.

If a Trespasser is Injured on My Property, Am I Responsible?

If a Trespasser is Injured on My Property, Am I Responsible?

attractive nuisance, no trespassing

As a landowner, you might wonder whether you need to be concerned about injuries that occur when someone trespasses on your property. Generally, trespassers enter your land at their own risk. Both common sense and the law acknowledge that you have “no duty to anticipate a trespasser’s entry or to provide for a trespasser’s safety.” Your only duty is to “refrain from acts which willfully, wantonly, or recklessly cause injury or death to trespassers.” To be clear, posting a sign warning that “trespassers will be shot” does not make it legal to harm someone.

However, there is an important exception known as the “attractive nuisance” doctrine. Despite the flashy name, attractive nuisance is better understood as “liability for artificial conditions that are highly dangerous to the safety of trespassing children.” Under this doctrine, a landowner may be liable to an injured trespassing child if:

  1. The possessor of real property maintained, or allowed to exist, an artificial condition on the property that was inherently dangerous to children.
  2. The possessor of real property knew or should have known that children trespassed on the property.
  3. The possessor of real property knew or should have known that the artificial condition he or she maintained or allowed to exist was inherently dangerous to children and involved an unreasonable risk of serious bodily harm or death to children.
  4. The injured or killed child, because of their youth or tender age, did not discover the condition or realize the risk involved in entering onto the property or in playing in close proximity to the inherently dangerous artificial condition.
  5. The possessor of real property could have reasonably provided safeguards that would have removed the inherent danger without interfering with the purpose for which the artificial condition was maintained or allowed to exist.

Examples of attractive nuisance include an “insufficiently guarded swimming pool,” poorly guarded or defective trampolines, and a dangerous accumulation of junked cars. While not exhaustive, this list provides examples of artificial conditions that, if not properly safeguarded, could lead to liability.

As a property owner, it is crucial to implement protective measures such as installing locks or fences to prevent children from accessing dangerous conditions. If you have questions or concerns about your property or need advice on how to manage potential liabilities, please contact one of our experienced attorneys. They will be happy to assist you in ensuring your property is safe and legally compliant.

 

 

 

 

Legal Custody vs. Placement

Legal Custody vs. Placement

Two divorced parents talking to a child. Legal custody concept.

Wisconsin has two distinct concepts relating to minor children in family law cases: Legal Custody and Physical Placement. Many people use these terms interchangeably, but they have distinct legal meanings and implications in the State of Wisconsin.

A. Legal custody refers to the right and responsibility to make major decisions regarding a child’s life. Pursuant to Wisconsin statutes, major decisions include (but are not limited to) consent to marry, consent to enter military service, consent to obtain a motor vehicle operator’s license, authorization for non-emergency health care and choice of education or religion. When entering a judgment of divorce or judgment of paternity, the court must end an order regarding the allocation of legal custody between the parents. The two main options available to the court are joint legal custody or sole legal custody to one of the parents.

1. Joint Legal Custody: The law requires that the court presume (with limited statutory exceptions) that joint legal custody is in the child’s best interest. Joint legal custody is defined as “the condition under which both parties share legal custody and neither party’s legal custody rights are superior” to the other party. This is the most common arrangement, where both parents share the responsibility of making major decisions for their child. Joint legal custody does not necessarily mean equal time with the child, but rather equal say in important matters.

2. Sole Legal Custody: Sole legal custody provides one parent with the exclusive right to make major decisions for the child. The statute provides a rebuttable presumption that it is in a child’s best interest to award sole legal custody to a victim of domestic violence if the court finds that the other parent engaged in in a pattern or serious incident of domestic abuse. There are limited statutory requirements for that rebuttable presumption to be overcome. Sole legal custody is also permitted if the court finds any of the following:
One party is not capable of performing parental duties and responsibilities or does not wish to have an active role in raising the child
1. Condition(s) exist that substantially interfere with the exercise of joint legal custody
3. The court finds that the parties will not be able to cooperate in the future decision making required for joint legal custody.

3. Final Decision Making: The court may also award parties joint legal custody, but authorize one party to have final decision making over a category of legal decision making. For example, joint legal custody with one parent having final decision making for non-emergency medical care.

B. Physical placement refers to the time a child spends with each parent and involves the day-to-day care and supervision of the child. Physical placement is essentially about where and with whom the child lives. The child’s best interest is the overarching principle in determining physical placement. Although the statute requires that the court “set a placement schedule that allows the child to have regularly occurring, meaningful periods of physical placement with each parent and that maximizes the amount of time the child may spend with each parent.” It is important to note that “maximizing placement” does not equate to a presumption for equal placement.

1. Primary Physical Placement: Here, the child lives with one parent for the majority of the time, while the other parent has scheduled placement periods, such as every other weekend.

2. Shared Physical Placement: In a shared placement schedule, the child spends significant time living with both parents. The schedule can vary widely and shared placement is not always equal placement.
As noted above, the statute requires a schedule that maximizes the time the child spends with both parents based on what schedule is in the child’s best interest. This is based on a number of factors including, but not limited to:

  • The wishes of the parents and the child,
  • How well the parties communicate and cooperate with each other,
  • The degree to which each parent can support the child’s relationship with the other parent,
  • The child’s relationship with siblings and others in both parents’ households,
  • The amount of quality time that each parent has spent with the child and will likely be able to spend with the child in the future,
  • The child’s developmental and educational needs, along with issues related to mental health and drug and alcohol abuse.

Legal custody and physical placement issues in family court are often the most expensive issues for parties to litigate. They are also emotionally taxing for parents and children. Understanding the distinction between legal custody and physical placement is crucial for parents navigating the family law system as both aspects play significant roles in the child’s well-being and the parents’ responsibilities. When parents recognize these differences, they can better advocate for arrangements that serve the best interest of their children and ensure a stable, consistent supportive environment as they grow. If you find yourself in a legal dispute over custody and placement and are looking for legal representation, it is important to hire an attorney who fully understands the complex analysis of these issues. It is also advantageous to retain an attorney who you can be open and honest with because a full review of the factors that the court must consider in entering orders for custody and placement are fact driven and the details related to those factors matter. If you are in need of a Family Law Attorney please reach out to our law firm, we would be happy to assist you.

“You Don’t Say?!” Political Speech in the Private Sector Workplace

“You Don’t Say?!” Political Speech in the Private Sector Workplace

Woman feeling left our of work converstation

Another election season is upon us. That means that there may well be spirited discussions around the workplace water cooler or on social media as we express opinions on candidates and political issues.

The First Amendment to the U.S. Constitution generally protects the fundamental right to free speech:  “Congress shall make no law . . . abridging the freedom of speech.”  But the First Amendment does not apply to private employers, who can generally fire employees for their political activities or affiliations.

Generally, employees in the private sector do not have a constitutional right to free speech at the office. But employers still need to be aware of federal and state laws that protect workers’ speech in certain situations. For example, the Wisconsin Fair Employment Act prohibits discrimination against employees because the individual declines or refuses to participate in religious or political meetings or religious or political communications. This means that an employer may not require an employee to attend a political or religious meeting as part of the employee’s job activities.

Similarly, an employer may not interfere with an employee’s right to engage in concerted activity or for mutual aid or protection. Such speech is protected from retaliation under the National Labor Relations Act. This right to engage in concerted activity applies to workers in both union and non-union settings. Federal law protects the right to engage to speak with fellow employees about matters pertaining to wages, hours, and conditions of employment in the workplace.

WISCONSIN EMPLOYMENT PROTECTIONS FOR POLITICAL ACTIVITY
Although Wisconsin does not have a law that prohibits discrimination on the basis of political affiliation, the law that protects the right of employees to decline meeting attendance is a measure of worker protection.

Employment discrimination because of declining to attend a meeting or to participate in a communication about religious or political matters includes discharging or otherwise discriminating against an employee because the employee declines to attend an employer-sponsored meeting or to participate in any communication with the employer or with an agent of the employer, where the primary purpose is to communicate the opinion of the employer about religious matters or political matters. Wisconsin employers are advised to be cautious about trying to corral employees into political discussions. It is also a discriminatory practice in Wisconsin for an employer to threaten to discharge or otherwise discriminate against an employee as a way to require the employee to attend the meeting or communication described above.

The rules recited above do not apply if the employer is a religious association not organized for private profit or in an organization or corporation that is primarily owned or controlled by such a religious association and the primary purpose of the meeting or communication is to communicate the employer’s religious beliefs or practices. The law that make it unlawful to discriminate as described above also does not apply to a political organization including a political party, like the Democratic party or the Republican party.

Under the law, an employer still has the right to discuss with its executive, managerial or administrative personnel matters relating to the operation of the employer’s program, business or enterprise, including issues that may arise under the law that limits discrimination from mandatory meeting attendance or communications. An employer may offer meetings or other communications about religious or political matters for which attendance is completely voluntary.

In conclusion, speech in the private sector employment context is not as easy as it might first appear. Employees do have certain rights to discuss topics related to the workplace. But in Wisconsin, employers may discriminate on the basis of political affiliation, even though an employer may not require attendance at political or religious meetings. If you feel that you are in the middle of a legal minefield when it comes to political or religious speech in the workplace, it is best to contact your employment lawyer for advice and consultation.

Shipwrecked by a Sidewalk

Shipwrecked by a Sidewalk

Family walking on main street of historic north american town

With the exponential growth of technology occurring today, there is an often-repeated adage that “the law struggles to keep up with technology.” As such, it is always interesting when the highest Wisconsin court must spend its limited time with the bleeding edge issue…. what is a sidewalk?  The recent Wisconsin Supreme Court decision, Sojenhomer LLC v. Village of Egg Harbor, shows that the Court still must decide, and for the first time, a very early 20th century issue.

Anyone who has spent time in Door County during the summer can attest to the incredible busyness of its towns lined with shops, wine tastings and restaurants. The heavy traffic, combined with parked vehicles and pedestrians on two lane highways can lead to tight and dangerous corridors. In 2015, after hearing numerous complaints about the dangerousness of downtown Egg Harbor for pedestrians, specifically the area of the intersection of County Highway G and State Highway 42, the Village of Egg Harbor decided to act. The Village decided to add a new sidewalk on the on the east side of the County Highway G, among other changes. To build the sidewalk, the Village needed to acquire, through its condemnation power, the 0.009 acres that belonged to Sojenhomer LLC; on that property, Sojenhomer operated the Shipwrecked Brew Pub and Restaurant and used that .009 acres for parking.

Sojenhomer sued to stop the Village on the grounds that the condemnation was prohibited by Wis. Stat. § 32.015, which bars the use of condemnation powers to establish “a pedestrian way.” In Sojenhomer’s eyes, obviously a sidewalk is a pedestrian way, so the Village could not condemn its property to build its desired sidewalk. Unsurprisingly, the Village took the opposite view:  “a pedestrian way” and a “sidewalk” were distinct and separate things. Illustrating how unsettled the matter was, the local circuit court agreed with the Village; the Wisconsin Court of Appeals agreed with Sojenhomer.

As the decider of last resort, the Wisconsin Supreme Court agreed with the Village:  the legislature’s definition of “pedestrian way” does not include “sidewalk.”  Appropriate for the exciting nature of dried concrete, the Court relied on good old-fashioned statutory interpretation rules to reach its decision. The Court found that the statute used the terms “sidewalk” and “pedestrian way” in ways that each term had separate, non-overlapping meaning. To the Court, the fact that various statutes used both terms indicates that the terms were not one in the same. Moreover, when the legislature first introduced the term “pedestrian way,a way designated for pedestrian travel” –  in 1949, the statutes already contained a definition of “sidewalk” as “that portion of a highway between the curb lines and adjacent property lines.” In other words, if a pedestrian way was a sidewalk or a sidewalk was a pedestrian way, there would be no reason for both terms to exist.

The Court noted that sidewalks are a ubiquitous feature of road projects across the state, and if the legislature wanted to prohibit the use of condemnation to build sidewalks, they could have done so easily and clearly. Instead, when limiting condemnation powers, the legislature did not include the word “sidewalk” and instead included the seldom-used phrase “pedestrian way.”

If any dedicated reader has made it this far, he or she hopefully recognizes the slightly tongue-in-cheek nature of this issue. Yet, this case serves as an important reminder and illustration that our courts continue to grapple vigorously (this was a 4-3 decision) with issues and words that most residents would consider antiquated. The ever-changing nature of our world, and its attendant needs, highlight how the stale terms and law must be constantly applied to new fact scenarios every day.