In recent months, an increasing number of companies have reported receiving official-looking intellectual property notices and solicitations. These fraudulent solicitations may take the form of invoices, renewal notices, or other solicitations claiming to be from an official agency. A company holding any form of intellectual property may be a target for these solicitations, as intellectual property information is publicly available and easily procured on the Internet.

Examples of these notices and solicitations state that:

1. Payment will ensure international protection for a patent or trademark
2. Trademarks or business names are “about to expire” if payments are not made immediately
3. The sender is a domain name registrar in China and someone is interested in registering the recipient’s trademark or business name as a domain name in that region

Such notices are almost always a scam; the United States Patent & Trademark Office (USPTO) and other official agencies rarely send intellectual property holders invoices or maintenance notices, and never send solicitations.

Further, responding to these notices may affect your intellectual property rights. In one case, a registrant responded to official-looking solicitations regarding the supposed imminent expiration of its trademarks. The solicitations included an early, and erroneous, expiration date to encourage the registrant to respond promptly. While the scam artist did submit a maintenance filing to the USPTO, the submitted document was riddled with errors, including false statements that he was a manager of the registrant and that he had knowledge of the use of the mark when, in fact, he did not. Statements such as these may unnecessarily trigger questions of fraud, if there was ever a dispute over the mark. Even worse, the same scam artist submitted a specimen of use from a competitor that appears to be an infringing use of the registrant’s mark. These filings are now permanently part of the record, because under current practice, anything submitted to the on USPTO remains part of the record, regardless of whether the submission was made in error.

If you ever have any doubt about communications you have received or the status of your intellectual property, please consult your intellectual property attorney before responding.

Note: This article has been updated to include further guidance regarding the effective date of certain provisions of the Women’s Economic Security Act.

The Women’s Economic Security Act, recently signed into law by Governor Mark Dayton and designed to make economic progress achievable for Minnesota’s women, makes a number of changes to existing laws, creating or expanding legal protections for women.

In light of these substantial changes to Minnesota law, Minnesota employers should revisit their current policies and practices, to ensure that they comply with the Women’s Economic Security Act, and that any other implications of the new laws have been considered. Employers may also need to update their current employee handbooks, including any policies on parenting leave, equal opportunity employment, and workplace accommodations in light of these changes to the law.

UPDATE: Since the Act was signed into law, some debate has arisen as to the effective dates of several provisions in the Act. Though the law was silent on the effective dates of these provisions, the Office of the Revisor of Statutes is interpreting the effective date of these provisions to be July 1, 2014, rather than August 1, 2014, as previously believed. As the debate is still ongoing, we advise Minnesota employers to comply with the Act by July 1, 2014.

Below are the updated effective dates, taking into account the new guidance. Please let us know if have any questions as you update your policies and procedures to comply with this law.

Effective immediately, the Women’s Economic Security Act:

• Requires employers with 21 or more employees to provide reasonable accommodations for health conditions relating to pregnancy upon request, such as more frequent restroom, food, and water breaks; seating; and limits on lifting over 20 pounds.
• Amends the Minnesota Human Rights Act to protect job applicants from being discriminated against based on their “familial status,” which means whether a minor lives with them, they are pregnant, or they are securing legal custody of a minor.

Effective July 1, 2014, the Women’s Economic Security Act:

• For employers with 21 or more employees, expands pregnancy and parenting leave under the Minnesota Parental Leave Act from 6 weeks to 12 weeks, and requires that the leave may be used for pregnancy-related needs.
• For employers with 21 or more employees, permits employees to use sick leave benefits to care for illnesses of the employee’s mother in-law, father in-law, grandchildren, or step-grandchildren.
• For employers with 21 or more employees, permits employees to use available paid time off for “safety leave,” a new type of leave that allows employees to provide assistance to relatives who are the victims of sexual assaults, domestic abuse, or stalking.
• Requires all employers to provide unpaid break time and a private space (not a restroom) for nursing activities.
• Prohibits all employers from requiring employees to maintain their wage information as private or confidential, and further prohibits all employers from taking adverse action against employees who disclose their wage information.

Effective August 1, 2014, the Women’s Economic Security Act:

• Requires that, with certain exceptions, businesses with more than 40 employees seeking contracts of at least $500,000 with the state must first obtain an “equal pay certificate of compliance” in order to do business with the state.

If you have any questions about the Women’s Economic Security Act or other employment-related issues, please feel free to contact the attorneys in our Employment practice group.

Like death, taxes may be certain, but they certainly don’t need to increase each year. If the recovering economy hasn’t yet benefited your commercial property but the assessor assumes it has, a tax appeal may be appropriate.  Since real estate taxes are charged as a percentage of value, an over-valuation of your parcel means you are paying too much in taxes.  We may be able to help you reduce your real estate tax liability. You must, however, act quickly. The general deadline for challenging property taxes payable this year is April 30, 2014.

How Assessed Market Values Are Calculated
The county bases your real estate taxes payable in 2014 on the assessor’s estimated fair market value of your property as of January 2, 2013. The higher the value was then, the higher the tax is now. State law specifies that, for real estate tax purposes, assessors must determine the market value of each property at least every five years, yet, as a practical matter, an assessor cannot thoroughly appraise every parcel. The assessor may, therefore, rely in part on periodic mass appraisals of similarly situated properties and sales data from the preceding 15 months. Bulk appraisals do not take into account the peculiar characteristics of your parcel, which may differentiate it from market averages.

Reasons to Appeal
A recent appraisal or an arm’s-length sale of the property at a price below the assessed market value may provide good reason to appeal. Sometimes the stream of income generated by the property may not justify the assessed value. Sales of comparable properties may suggest a lower value for your property. Development costs may also play a role in determining the value of newer buildings. A significant change in use may even justify a reclassification of the property to a different class rate.

The Time to Act is Now
If you have reason to believe your commercial (e.g., office, retail, industrial, or multifamily) property is overvalued by more than $500,000, but you have not yet acted on the problem, contact us as soon as possible to discuss filing an appeal by the deadline.  Act now to avoid overpaying on your real estate taxes.

On March 21, 2013, Governor Dayton signed a tax bill that impacts Minnesota residents as well as those who reside out-of-state, but own real estate and other assets in Minnesota.

Estate Tax Exemption:
The Estate Tax Exemption for Minnesota residents will increase over the next five (5) years, from $1 million for a death in 2013, up to $2 million for Minnesota residents who pass away in 2018 and after.  The chart below shows the scheduled increases in the Minnesota Estate Tax Exemption.

If you are not a Minnesota resident, but own real estate or other assets in Minnesota, the exempt value from Minnesota estate tax will also be increasing.

Repeal of Minnesota Gift Tax:
In July, 2013, a new Minnesota Gift Tax went into effect.  The Minnesota gift tax has been repealed – retroactively effective as of July, 2013. For Minnesota residents who made gifts after July 1, 2013, a Minnesota Gift Tax Return does not need to be prepared or filed, and no gift tax is due for gifts in Minnesota.  The Federal gift tax law remains unchanged.  If you made a gift in 2013 after July 1 of more than $1 million, no Minnesota gift tax is due on April 15, 2014, to the State of Minnesota.

Continuation of Other 2013 Minnesota Estate Tax Law Changes:
Changes were made in 2013 to subject non-Minnesota residents to estate tax for partnerships and other entity assets located in Minnesota. Other than slight modifications, those laws remain in place.

Who do the Tax Law Changes Impact?
The tax law changes may affect certain clients with existing estate planning documents.  Among others, a married couple with a combined net worth in the $1,000,000 to $4,000,000 range may benefit from updating their estate planning documents in light of the new tax laws.

If you have any questions on the impact these laws have upon your estate plan, please contact the attorneys in our Tax, Trusts & Estates practice area.

Today, the U.S. Department of the Treasury and the Internal Revenue Service published Final Rules to implement the information reporting provisions for insurers and certain employers under the Affordable Care Act (“ACA”), which will take effect in 2015.

The Final Rules apply to Sections 6055 and 6056 of the Internal Revenue Code (“IRC”), which describe employer reporting for the purpose of monitoring whether an employer is compliant with the ACA’s Employer Mandate. The Employer Mandate generally requires employers with 50 or more full-time employees to offer their full-time employees coverage that meets minimum value and affordability standards under the ACA or pay a penalty, though compliance has been pushed back one year for certain employers. Employers with 50 to 99 full-time employees will not be subject to penalties under the Employer Mandate for failing to provide health insurance coverage to employees in 2015. Moreover, employers with 100 or more full-time employees need only offer coverage to 70% of their full-time employees in 2015 to be compliant with the regulations. Despite these delays, the information reporting provisions take effect in 2015, and employers should begin to familiarize themselves with the requirements.

IRC 6055 describes reporting requirements for self-insuring employers, insurers and certain other providers of minimum essential coverage, while IRC 6056 describes reporting requirements for applicable large employers. Under the Final Rules, reporting for both IRC 6055 and 6056 will be made on the same form with the stated goal of eliminating duplicative filings by employers. Large employers that self-insure (employers that pay their employees’ medical costs directly, instead of joining a traditional plan) will fill out both sections of the form. Large employers that do not self-insure will only fill out the top half of the form, for reporting under IRC 6056.

According to the Final Rules, for IRC 6055, an employer must generally report information about the employer, the employees insured, and information on the minimum essential coverage provided. IRC 6056 requires applicable large employers to report information about themselves, such as the number of full-time employees for each month during the calendar year, to certify whether they offered coverage to their full-time employees, and to provide certain information about the plan offered, such as the monthly premium for the plan.

The Final Rules also simplified the reporting obligations of employers who make qualifying offers of coverage to their employers.  According to the Treasury press release, a qualifying offer of coverage is “an offer of minimum value coverage that provides employee-only coverage at a cost to the employee of no more than about $1,100 in 2015” combined with an offer of coverage to the employee’s family, which would not need to meet the cost threshold. The Final Rules allow employers to report different information based on whether or not a given employee was offered coverage for all 12 months of a year or for fewer than 12 months in a year. For employees receiving a qualified offer for all 12 months, “employers will need to report only the names, addresses and taxpayer identification numbers” of such employees. For employees receiving a qualifying offer in fewer than 12 months in the year, employers will be able to report such employees “for each of those months by simply entering a code.”

In accordance with the Minnesota Campaign Finance and Public Disclosure Act, all lobbyist principals must file an Annual Report with the Minnesota Campaign Finance and Public Disclosure Board (“Board”) on or before March 17, 2014. A lobbyist principal is any individual or group that either hires a lobbyist or spends $50,000 or more in any calendar year to influence governmental action in the State of Minnesota.

The lobbyist principal report must disclose the total amount of money spent by the principal on lobbying efforts in Minnesota from January 1 through December 31, 2013. To calculate the amount to be disclosed, the lobbyist principal must consider the following expenses:

1.All payments to lobbyists;
2.All spending for advertising, mailing, research, analysis, compilation and dissemination of information and public relations campaigns related to legislative action, administrative action or the official action of any metropolitan governmental unit; and
3.All salaries and administrative expenses attributable to lobbying activities.

The total amount spent on lobbying may be rounded to the nearest $20,000. According to the Lobbyist Handbook that is published by the Board, an organization that spends $3,000 on lobbying may round this number to $0. Similarly, if the principal’s total lobbying expenditures total $36,000, the organization may report the total as $40,000. Rounding, however, is not required and the Board will accept principal reports that include the actual amount spent on lobbying without rounding.

The Annual Report of Principal Lobbyist may be filed with the Board by electronic mail at [email protected] or by facsimile at (651) 539-1196 or (800) 357-4114. Reports may also be filed electronically at www.cfboard.state.mn.us/lobby/reportPrin.htm. A username and password to use the online reporting system is sent to each lobbyist principal in February of each year. If you have misplaced your username or password, you may obtain a new one from Board staff by calling (651) 539-1187. All reports are available for viewing by the public.

Should you have any questions regarding the filing of this report, or any other campaign finance or lobbying law issues, please fee free to contact any of the attorneys on our Political Law team.

Stay tuned to our blog, Inside the Minnesota Capitol, for updates on Minnesota politics, regulatory agencies and state government news.

On December 30, 2013, the Internal Revenue Service (the “IRS”) issued Revenue Procedure 2014-12 (“Guidance”), which establishes a “safe harbor” for federal historic tax credit (“HTC”) investments made within a single tier or through a master tenant structure. The Guidance was issued largely in the response to the recent decision in Historic Boardwalk Hall, LLC v. Commissioner, 694 F.3d 425 (3d Cir. 2012), cert. denied, US No. 12-90, May 28, 2013 (“HBH“), in which the Third Circuit Court of Appeals held that an investor was not a partner in the partnership that owned a project, because it did not have a meaningful upside potential nor a meaningful downside risk in the economics of the property.

The Guidance will undoubtedly serve as a very large first step in restarting an HTC industry that has been stagnant for months, but due to some of the ambiguous requirements in the Guidance, additional measures in the coming months will likely need to be undertaken before Investors return to investing at levels experienced prior to the HBH decision. Such additional measures may include additional clarification, interpretation, and/or elaboration on certain provisions by government officials and/or the adoption of new standard investment terms by developers, Investors, and their respective tax advisors to conform to the requirements of the Guidance. Attorneys from Winthrop & Weinstine will be closely monitoring and actively participating in such ongoing conversations as the HTC industry prepares to implement the safe harbor requirements in the financing structures of historic projects going forward.

For Winthrop & Weinstine, P.A.’s summary of the Guidance, as supplemented by guidance from IRS officials Joseph Worst and Craig Gerson at the January 14, 2014, conference held by IPED, Inc. (the “IPED Conference”), and our analysis of the material terms and conditions of the same, please click here.

If you have any questions about any topics in this Alert, or any other concerns that arise as a result of the Guidance, please do not hesitate to contact any of the attorneys from Winthrop & Weinstine’s Federal Tax Credit Practice Group.

The Affordable Care Act requires all U.S. citizens and legal residents to have or to obtain qualifying health insurance coverage, effective January 1, 2014, or pay a tax penalty unless they meet certain criteria and receive an exemption from this requirement.  One way for Minnesota residents to fulfill this requirement is through the MNSure marketplace, where individuals can obtain health insurance.

The Affordable Care Act requires that employers who are subject to the Fair Labor Standards Act must provide their employees with a written notice containing information regarding health insurance marketplaces, such as MNSure, as well as options and costs, by October 1, 2013, though the Department of Labor has confirmed that there will be no fine or penalty if an employer fails to provide the notice.

Both MNSure and the United States Department of Labor offer model notices for employers to use.

To determine whether you must provide the required notice, to determine which notice you should use or for other legal guidance regarding the Affordable Care Act, please feel free to contact us.

Winthrop & Weinstine’s Health Law Group has its finger on the pulse of today’s constantly changing health care industry, whether it be regulatory or compliance issues, representation before state and federal agencies or the legislature, employment counseling or litigation. We monitor the daily changes in health law regulations and new developments in the industry. We focus on helping our clients overcome their health care-related challenges and meet their business goals.

On August 1, 2013, S.F. 840, expanding employees’ sick leave benefits, took effect.

Minnesota law previously provided that an employee receiving sick leave benefits could use that time to care for a sick child, but it did not extend to other relatives. Under the new law, an employee may use sick leave benefits provided by the employer for absences due to illness or injury not only for the employee’s child, but also for the employee’s adult child, spouse, sibling, parent, grandparent, or stepparent, on the same terms upon which the employee is able to use sick leave benefits for the employee’s own illness or injury. The full text of the revised statute may be found here.

The new law does allow an employer to limit an employee’s use of sick leave benefits for absences due to illness or injury of the employee’s adult child, spouse, sibling, parent, grandparent, or stepparent, though this limit can be no less than 160 hours in any 12-month period, and does not apply to absences due to illness or injury of an employee’s child.

Employers should review their sick leave benefits policies and make necessary revisions to ensure compliance with the revised law. Employers may alternatively consider replacing sick leave policies with more general paid time off (“PTO”) policies, which could be drafted in such a way as to encompass sick leave. Employers should evaluate the potential economic and administrative impact this law change would have on existing policies and procedures, and consider whether it makes sense to adopt a broader PTO policy.

If you have any questions regarding the new sick leave law or any other employment topic, please contact any Employment Law attorney at Winthrop & Weinstine.

On June 26, 2013, the Supreme Court of the United States overturned Section 3 of the Defense of Marriage Act (“DOMA”) in United States v. Windsor. Prior to the Supreme Court’s decision, Section 3 of DOMA, a federal law, had defined marriage as the union between one man and one woman. Therefore, under DOMA, a same-sex couple who had been married in a state legally recognizing same-sex marriage would still be considered single under federal law, creating numerous challenges for same-sex spouses and their employers. Section 3 of DOMA has been overturned by the Supreme Court for a violation of Fifth Amendment personal liberty protections; the Court also recognized that marriage is a matter traditionally regulated by the states. Indeed, Section 2 of DOMA, which permits individual states to deny recognition of same-sex marriages formed in other states, still remains in force. Following the Court’s decision, same-sex marriages that are formed in states allowing same-sex marriage, like Minnesota, will now be recognized by the federal government, but there will still be complications when same-sex spouses live or work in states that do not recognize such unions.

According to the General Accounting Office, DOMA’s marriage definition impacted over 1,100 federal laws, so the Supreme Court’s decision will have a substantial impact. Here, we will look at a few of the key ways the decision will impact businesses and individuals in the areas of estate planning, tax, employment practices and employee benefits.

Effect of the DOMA Decision on the Minnesota Marriage Equality Act
On August 1, 2013, the Minnesota Marriage Equality Act goes into effect, allowing same-sex couples to marry within the state. Couples who elect to marry under the new Minnesota law will now have their marriages recognized by the federal government as well, permitting them access to health and retirement benefits, employment benefits, and the marital tax exemption that had previously been denied to same-sex couples.

Marriages formed in Minnesota may not receive the same recognition from other states that do not legally recognize same-sex marriages. Married same-sex couples may not, for example, be eligible for divorce if they move to a state that does not recognize their marriage, and employers in other states may not be required to grant spousal health benefits if the relevant plan is subject to state law. Conversely, under Minnesota’s law, marriages from other jurisdictions where same-sex marriage is legally recognized will be recognized in Minnesota, effective August 1, 2013.

Tax and Estate Planning
Joint filing of income taxes can create substantial savings for married couples, yet under DOMA, couples in state-recognized same-sex marriages were eligible for joint filing within their state while still required to file as single with the IRS. Even more confusingly, some state returns borrow from the filer’s federal returns, so couples were required to file a mock joint federal return with the state to accompany their state tax return, while also filing individual federal returns. Now, all couples married and employed in Minnesota will be able to file jointly for both state and federal returns. Should a same-sex couple be married in Minnesota and then subsequently need to file in another state that does not recognize same-sex marriage, that state may require the spouses to file as individuals even if they file jointly with the IRS.

Married couples are also eligible for the unlimited marital estate tax exemption, which allows a person to leave his or her entire estate to a spouse without paying tax on the transfer. Without the marital exemption, any amount above $5.25 million is subject to federal estate tax. Same-sex couples may now avoid tax on spousal estate transfers, regardless of their size.

Employment Practices and Employee Benefits
Employers are now permitted by federal law to grant same-sex spouses the same benefits that are available to all other spouses with the accompanying favorable tax treatment. The biggest impact will be on retirement and welfare benefits subject to the Employee Retirement Income Security Act (“ERISA”), and employers will also be required to expand eligibility for leave under the Family and Medical Leave Act (“FMLA”).

Medical, Dental, Life and Disability Benefit Plans
Welfare benefit plans (which include medical, dental, life and disability coverage), Section 125 “cafeteria” plans and fringe benefit programs sponsored by Minnesota employers will likely be required to provide the same level of coverage to same-sex spouses (i.e., those who live in a state where their marriage is recognized as lawful and valid) that is available under the plan to spouses in heterosexual marriages. The particular terms of these plans should be reviewed and revised as appropriate. For plans with benefits provided through insurance, this result should be automatic, since Minnesota is permitted to regulate the terms of insurance and likely will require insurance issued in Minnesota to cover same-sex spouses. We anticipate that Minnesota will be issuing guidance on when these changes must be made.

For employers based in other states, these coverage requirements currently will depend upon whether or not those states recognize same-sex marriage.

Retirement Plans
Most employer-provided retirement benefit plans, including ESOPs, 401(k) plans and pension plans, are governed by ERISA, which broadly preempts conflicting state laws. Now that DOMA’s federal definition of a “spouse” has been changed, any “lawfully married” same-sex spouses (i.e., those who live in a state where their marriage is recognized as lawful and valid) should automatically be treated as the “spouse” for all retirement plan purposes, including beneficiary designations, the assignment of benefits under a “qualified domestic relations order,” and eligibility for any qualified joint and survivor annuities and qualified preretirement survivor annuities available to spouses under pension and certain other retirement plans. Employers should be aware of the impact on their plans and review (and potentially revise) the plan terms, distribution and beneficiary forms.

Tax Implications for Employers
Under DOMA, no federal tax benefits (including pre-tax or tax-free benefits) could be provided to domestic partners and same-sex spouses unless the partner qualified as the employee’s dependent. This has required employers with benefits programs that extend to domestic partners or same-sex spouses to make tax withholdings on benefits and to report taxable income for domestic partners and same-sex spouse benefits. Now, all federal pre-tax and tax-free benefits applicable to spouses will extend to any same-sex spouse who is considered “lawfully married” under the laws of the state in which the couple resides. For Minnesota employers, this means that federal income tax reporting and withholding will not be required for any same-sex employees who are Minnesota residents. However, it appears that federal tax reporting and withholding will continue to be required for any benefits provided to domestic partners or same-sex spouses whose marriage is not recognized in their state of residence.

Additional Changes
While tax, estate, and employment areas have widespread impact, there are many other aspects of federal law that affect marriages. Same-sex spouses will now be eligible for hospital visitations, social security benefits, spousal immigration petitions, and home protection from forced sale to pay nursing home bills.

We will continue to monitor any further developments on this issue, and continue to provide updates as we see the result of the Supreme Court’s decision being implemented.