Articles from May 2019

The Rock Hill office welcomed a new staff attorney.  Carla Bryson joined the office in April.  She will be practicing primarily in the areas of consumer, housing, education, and family law.

Nothing about Carla’s journey has been traditional. After leaving the teaching profession, she attended community college where she earned an Associate’s Degree in Paralegal Studies. Carla worked for a law firm in North Carolina for about six months when she realized she wanted more.  Because her children were now older, her husband convinced her it was time to chase her dream. And that’s what she did.

Carla graduated from the University of South Carolina School of Law in December 2018. Carla’s love for reading and learning new things made law school a little more tolerable and a little less grueling.

On May 7, 2019, Carla was admitted to the South Carolina Bar. Carla hopes to be an inspiration to others who may have abandoned their dreams.

Carla enjoys reading and spending time with family. Carla has already started working on her next dream. She dreams of traveling to Bora Bora with her family and reading a good book while there.

This is a continuation of the article that first appeared in our April 2019 issue. For Part 1, look here.

What happens when a taxpayer that is entitle to a refund files a late return or never files?

The Internal Revenue Services’ (IRS) “general rule” is that in order to claim a tax refund, the taxpayer must file the tax return within 3 years of the due date. Example: The due date to file 2017 tax return was April 17, 2018 (or October 15, 2018 if the taxpayer requested an extension). In order to claim the refund, the taxpayer will have to file the 2017 tax return on or before April 17, 2021 (or before October 15, 2021 only if a filing extension was granted).

If the 3-year statute of limitation has passed, the taxpayer will not receive the refund unless there are extenuating circumstances. This rule also applies to any tax credits such as the Earned Income Tax Credit. The taxpayer will not receive any tax refund nor tax credits if the tax return is filed after the 3-year deadline. Does it matter if a taxpayer with a refund due does not file a tax return at all? Yes, it does matter. By law, we are required to file as long as we have taxable income or there is another filing requirement.

What happens if a taxpayer with a balance due files the tax return after April 15?

Penalties and interest – that’s what will happen…and they are awful! The IRS charges two different penalties. There is the Failure to File Penalty, which starts accruing the day after the tax filing due date. This penalty is 5% of the unpaid taxes for each month or part of a month that a tax return is late. Then, the IRS charges a second penalty, which is the Failure to Pay Penalty. The Failure to Pay Penalty is 0.5% of the taxpayer’s unpaid taxes for each month or part of a month after the due date. It also starts accruing the day after the tax filing due date. And finally, there is the interest that accrues on any unpaid tax from the due date of the return until the date of payment in full. The interest rate is determined quarterly and is the federal short-term rate plus 3%. A taxpayer can and must file a late tax return even with a balance due any time after the due date, however, the sooner the better.

What happens if a taxpayer files and has a balance due and he/she cannot afford to pay?

Ten years of notices, financial hardships, headaches, and emotional distress. The IRS has 10 years from the date the tax was assessed to collect on the tax debt. Ten years can seem to be an eternity, especially for the low-income taxpayers that cannot afford to pay back to the IRS after losing their jobs due to disability or loss of household income, among other reasons. This is why the sooner the taxpayer files the late return, the better. The longer the taxpayer waits to file a late return with a balance due, the higher is the tax debt and the longer the IRS will have to collect on it. During those 10 years, the IRS can garnish and levy wages, Social Security benefits, future tax refunds, bank accounts, and they can even seize any property the taxpayer might own. Finally, the IRS will file a federal tax lien against the taxpayer if the tax debt for any given year is more than $10,000. 

What happens if a taxpayer never files the tax return?

Good luck with the IRS! If a taxpayer fails to file, eventually, the IRS will file a substitute return on behalf of the taxpayer and they do not need the taxpayer’s consent to do so. Before filing a substitute return, the IRS will make many attempts to get the taxpayer to file the late return. 

There are some “inconveniences” from having the IRS file a substitute return. One inconvenience is that the substitute return filed by the IRS might not give the taxpayer any tax credits, tax deductions or exemptions that the taxpayer might be entitled to receive. Then, there is the fact that if the substitute return shows a balance due, the taxpayer will be forever and ever in debt with the IRS …unless of course the taxpayer pays the tax debt to the IRS.  There is not a statute of limitation for the IRS to collect on a substitute return balance due. Also, tax debt that arises from a substitute return cannot be discharged through bankruptcy. The IRS will be collecting until the tax debt is paid in full or paid through an offer in compromise. Can the taxpayer file a tax return after the IRS files a substitute return? Yes, the taxpayer can file after the IRS has filed the substitute return especially if the taxpayer intends to apply for any of the IRS tax debt relief programs in the future. However, bankruptcy is still off the table. 

The IRS tax debt relief programs are limited. Applying for any of the IRS programs can be an overwhelming, confusing, rough and an extremely long process for most of our low-income taxpayers. There is no guaranty that the IRS will accept the taxpayer’s request for any of their tax debt relief programs. Therefore, it is in the taxpayers’ best interest to file all required tax returns, even if it is a late return. Sometimes, filing a late tax return can help resolve part of the federal tax controversy or reduce the balance due. The bottom line is that no matter what caused the taxpayer to miss the deadline, taxpayers should file tax returns when required even if it is years past the due date. 

Individualized Education Program Annual Review Meetings

For most students with an Individualized Education Program (IEP), the end of the school year means it’s time for their annual review meeting. If you are a parent of a child with an IEP and your annual review is coming up soon, here are some quick tips to help you navigate the meeting.

1. Understand the purpose of the meeting. The IEP team (including you!) are meeting to consider (1) how well/poorly the student progressed toward their IEP goals, (2) whether an extended school year (ESY) is necessary, (3) whether the student continues to qualify for an IEP, and, if so, (4) what goals and services the student will need for the following school year.
   
2. Come to the meeting prepared. Three things here. First, the school must record data on a student’s progress toward their IEP goals. The IEP document itself dictates how this data is recorded and how often it is provided to the parent(s). Make sure you get this data and review it before the meeting. Don’t focus on grades – focus on progress in each individual goal. Second, ask for a “proposed or draft IEP.” You aren’t entitled to one by law, but many schools will provide you with a draft copy ahead of time, so you have time to digest all the information. Third, bring whatever people or documents you believe are relevant to the meeting. For example, if the student sees a therapist or doctor outside of school and they have new/relevant information, bring something in writing from them or have them participate (in person or by telephone).
   
3. Don’t breeze through last year’s IEP goals. When a team sets an IEP goal, they believe the student can achieve it within the year. In the annual review meeting, if the school states the student did not achieve an IEP goal, you should ask “Why?” Now, there are many different answers to this question, and, admittedly, it can be difficult to determine exactly why. However, if the answer from the school is, “The goal was just too high,” you should be respectfully suspicious. The student should be making appropriate progress, given their disability. If you believe the student should be doing better, voice that in the meeting. Ask about what more the school can be doing. If the school resists, you may need to seek the opinion of an independent child psychologist, parent advocate, or attorney. Also, if the school tells you, “IEP goals are aspirational; we just have to do our best to try and reach them,” respectfully correct them (see “attainable” below in #5).
   
4. Understand the purpose of an extended school year (ESY). A student will qualify for ESY only if additional time is needed by the school to complete the student’s IEP goals, or if there is a serious risk that the student will regress – move backward – over the summer break. Schools are typically very resistant to ESY for an obvious reason: cost. If it takes your student a very long time to catch up at the beginning of each school year, they may need ESY services. If you believe your student qualifies for ESY and the school denies the services, you should speak with a parent advocate or attorney.
   
5. Don’t breeze through this year’s IEP goals. The IEP goals are the meat of the IEP. They dictate exactly what the school is going to focus on. IEP goals must be “SMART”: Specific, Measurable, Attainable, Results-oriented, and Time-bound. The goal must be specific in that it needs to address a particular deficiency the student has as a result of their disability. “Johnny’s math grade will improve,” is not specific; “Johnny will improve his ability to add and subtract single-digit numbers…” is.  The goal must be measurable in that the student’s skill and progress must be objectively scored. Think charts and graphs; not feelings and observations. The goal must be attainable, meaning it accurately reflects the kind of progress the student can and should make. The goal must be results-oriented in that it specifies how the student and school will go about accomplishing the goal. Finally, the goal must be time-bound, meaning the goal should be completed within a certain amount of time (typically 1 year).
   
   Here’s what I tell people all the time: if you can’t understand what the goal is saying, tell the IEP team; odds are, someone else doesn’t understand it either. Ask the team to reword the goal in such a way that a new person can read and understand it without explanation.

Always remember that you are a member of the IEP team. The school has to consider your thoughts, information and opinions. You are an expert on your student in a way that no one else is.

Finally, if you disagree with any part of the IEP, you need to (1) respectfully vocalize your disagreement, (2) ensure your disagreement is in writing (either on a specific form or in the meeting notes), and (3) sign the meeting documents noting “for participation purposes only” next to every signature. Get copies of everything and make arrangements to immediately speak with a parent advocate or attorney.

Greetings from the Employment Law Unit of South Carolina Legal Services! What do we do, you ask? Our Unit serves the civil legal needs of low-income South Carolinians with employment-related issues.

We help workers overcome legal barriers to a job, such as a criminal record that prevents a worker from being able to support his or her family, denial of an occupational license, or a driver’s license suspended due to an excessive fine that prevents a worker from being able to get to work. The purpose of these types of services is to increase individuals’ ability to find high-quality jobs and thereby strengthen our state’s workforce.

Other types of issues we help with include those arising on the job. Workers have a legal right to a safe workplace free of illegal discrimination, as well as a right to be paid all wages when due. We help workers protect these rights.

Finally, we assist with legal issues arising after separation from the job, such as preservation of unemployment benefits so that workers and their families have the support they need while they look for their next job opportunity.

While a large part of the work of the Employment Law Unit is fighting hard for our clients’ rights in the workplace, we also do all we can to educate workers about their rights and the legal tools that can help expand their employment opportunities. We present legal clinics throughout the state on various topics, including how people can overcome a criminal record using the expungement process, and how to get a driver’s license reinstated. Any group interested in having one of our attorneys speak on an employment-related topic is welcome to email a request to jackcohoon@sclegal.org or tiffneylove@sclegal.org.

The Employment Law Unit is here to serve you!

Timmy came to live with his grandmother Cathy a few months after he was born. SC Department of Social Services (DSS) removed him from his mother due to neglect, abuse, and use of drugs in his presence. In the few months that followed, Cathy was granted custody of the baby. She already had custody of Timmy’s older brother, Kyle, who came to be with her under similar circumstances.

Cathy admits that her daughter, the boys’ mother, was troubled. Jennifer was suffering from mental illness, frequent homelessness bouts, and was a victim of domestic abuse. In other words, she was in no position to care and provide a home for two small children. The fathers of the children were not in their lives. Neither provided any financial support. As far as Cathy knew, neither ever showed any interest in his child. She would later find out, one of them had been incarcerated out of state.

This last factor was what complicated the case. When Cathy first came to South Carolina Legal Services (SCLS) needing help with adoption, the only information she had about the fathers were their names. After doing some research into the matter, SCLS was able to locate the whereabouts of both fathers. One of them, who was still in South Carolina, consented to give up his parental rights and allow for Cathy’s adoption. Jennifer too was willing to consent. The situation with the other father was a bit more complicated. Having an incarcerated party in a case normally presents more challenges than otherwise, and in this case, the father was uncooperative. Still, with perseverance, hard work and having followed the proper legal channels, SCLS was able to get the judge to terminate his parental rights as well. No further obstacles were present, and Cathy was able to adopt both Timmy and Kyle.

Although both kids already considered Cathy as their mother, this made it official. The boys were very excited. After the hearing, they posed for a photo with the presiding Judge. He gave them two teddy bears that had been donated by the local attorneys’ bar association to commemorate the occasion. There wasn’t a dry eye in the court room. Happiest of all was Cathy. This process gave her a piece of mind. Now, nobody would be able to come and take her babies away from her.