The New Jersey Medical Aid in Dying for the Terminally Ill Act

We have witnessed a growing movement to allow terminally ill patients to end their own lives on their terms throughout the United States. New Jersey joined that movement when the Medical Aid in Dying for the Terminally Ill Act (“Act”) was signed into law by Governor Phil Murphy on April 12, 2019. The Act becomes effective on August 1, 2019, making New Jersey the eighth jurisdiction in the country to allow terminally ill patients to end their own lives with life-ending medication prescribed by their attending physicians.

The Act (codified at N.J.S.A. 26:16-1, et seq.) outlines how a terminally ill patient may request life-ending medication. A patient may request life-ending medication if the patient (a) is an adult New Jersey resident (as defined by N.J.S.A. § 26:16-11), (b) is capable and has been determined to be terminally ill and (c) has voluntarily requested to receive the medication. N.J.S.A. 26:16-4.

The first prong arises out of concern that residents of other states will travel to New Jersey to receive life-ending medication.  New Jersey residency may be satisfied if a terminally ill patient provides a copy of one of the following to their attending physician: (a) a driver’s license or non-driver identification card issued by the New Jersey Motor Vehicle Commission; (b) proof that the person is registered to vote in New Jersey; (c) a New Jersey resident gross income tax return filed for the most recent tax year; or (d) any other government record that the attending physician reasonably believes demonstrates that the individual’s current residency is the state of New Jersey. These requirements are intended to prevent non-New Jersey residents from traveling to New Jersey to request life-ending medication. Other jurisdictions that enacted similar death with dignity laws have incorporated a residency requirement in order for a terminally ill patient to receive life-ending medication in that jurisdiction.

To establish residency in New Jersey, one must establish a physical address in the state and obtain a driver’s license or non-driver identification card that reflects the New Jersey address. The requirements for both forms of identification require an applicant to provide proof of address, which include copies of utility bills, bank account statements, current mortgage or rental agreements or property tax bills from the past year. To register to vote, a resident may fill out a voter registration application form established by the county in which the voter resides but the voter must produce a New Jersey driver’s license, non-driver identification card or swear that the voter does not possess government-issued identification.

The second prong is primarily the patient’s attending physician’s responsibility. N.J.S.A. 26:16-4 requires a patient to be “capable” and “terminally ill.”  “Capable” means having the capacity to make health care decisions and to communicate those decisions to a health care provider, including communication through persons familiar with the patient’s manner of communicating if those persons are available.  N.J.S.A. 26:16-3.“Terminally ill” means that the patient is in the terminal stage of an irreversibly fatal illness, disease, or condition with a prognosis, based upon reasonable medical certainty, of a life expectancy of six months or less. N.J.S.A. 26:16-3. To be determined a “qualified terminally ill patient,” a consulting physician must also examine the patient to confirm the attending physician’s diagnosis and authenticate the patient’s capacity and voluntariness. N.J.S.A. 26:16-7. Attending physicians are required to maintain extensive records, which include documentation of a patient’s requests for medication, records concerning the patient’s diagnosis, prognosis, capacity, and voluntariness in submitting such requests, as well as records from consulting physicians and any other health care professionals involved with the patient’s request for medication. N.J.S.A. 26:16-10(d). These records are a part of the medical record of a terminally ill patient. The attending physician is also required to submit a copy of these records to the New Jersey Department of Health no later than 30 days after dispensing life-ending medication to a terminally ill patient. N.J.S.A. 26:16-13(a)(1).

The third prong is a multi-step process that requires a patient to make two oral requests and one written request to a patient’s attending physician. A patient may submit a written request to receive life-ending medication to his or her attending physician when the patient makes the initial oral request or at any time thereafter. N.J.S.A. 26:16-10(a)(3). The two oral requests must be made at least 15 days apart and the attending physician must advise the patient to consult with another health care professional to discuss other treatment options but the patient is not required to participate in the consultation. N.J.S.A. 26:16-10(c). After making the second oral request, the attending physician must afford the patient an opportunity to rescind the request for life-ending medication, which may be completed at any time and for any reason. N.J.S.A. 26:16-10(a)(2),(b).

The Act has raised issues regarding life insurance policies that are owned by terminally-ill patients. Many life insurance policies contain suicide riders that prevent a payout if the insured commits suicide within the first two years of binding an insurance policy. After the two-year period lapses, most policies pay out the death benefit, even if the cause of death is suicide. However, the Act differentiates between patients who ingest life-ending medication and those who partake in assisted suicide.

Additionally, deaths that occur within the parameters of the Act do not constitute suicide or assisted suicide. N.J.S.A. 2C:11-6. As such, suicide riders in most life insurance policies are irrelevant, as deaths under the Act are not considered suicide.  The cause of death for those who pass away in accordance with the terms of the Act will likely reference natural causes on the decedent’s death certificate.

In jurisdictions in which a person passes away in accordance with similar “death with dignity” laws, the underlying terminal illness is generally listed as the cause of death and the manner of death is denoted as “natural” per the instructions of most of the jurisdictions’ respective health departments. Furthermore, in New Jersey, the Act provides that any  provision in a contract, last will and testament, insurance policy, annuity, or other agreement, whether written or oral, made on or after August 1, 2019, that purports to restrict a person’s decision to make or rescind a request for life-ending medication will be invalidated and that premium rates for insurance policies or annuities cannot be conditioned on the same request. N.J.S.A. 26:16-14. In the states in which “death with dignity” laws are in effect, we found no challenges regarding remittance of death benefits under a life insurance policy.

The Act will likely make it easier for New Jersey residents suffering from a terminal illness to end their lives on their own terms. The Act includes safeguards and a well-defined process that allows capable, terminally ill patients who are fully informed of their decision to voluntarily terminate their lives if they feel that it is in their best interest to do so. The Act also guides health care providers and advocates who support dying patients.

Michael Salad is a partner in Cooper Levenson’s Business & Tax and Cyber Risk Management practice groups. He concentrates his practice on estate planning, business transactions, mergers and acquisitions, tax matters and cyber risk management. Michael holds an LL.M. in Estate Planning and Elder Law. Michael is licensed to practice law in New Jersey, Florida, Pennsylvania, New York and the District of Columbia. Michael may be reached at (609) 572-7616 or via e-mail at msalad@cooperlevenson.com.

Shaiful Kashem is a summer Law Clerk at Cooper Levenson. He is a candidate for a J.D. at Rutgers School of Law in Camden. Shaiful may be reached at (609) 344.3161 or via e-mail at skashem@cooperlevenson.com.

 

Gov. Murphy Report on Employee Misclassification

On July 9, 2019, Governor Phil Murphy released a Task Force report that urges the Legislature to adopt, among other provisions, more severe penalties for employers that misclassify their workers and liability for businesses that engage with businesses that misclassify their workers.[1]

Worker misclassification occurs when an employer, either intentionally or in error, labels a worker who is legally an employee as an independent contractor.[2] By mislabeling an employee as an independent contractor, usually by issuing the employee a  form 1099 instead of a form W-2, employers avoid paying workers’ compensation insurance and state-run unemployment, as well as Social Security, Medicare, and federal income tax withholding requirements.

The penalties for misclassifying workers, even without the proposed legislation, are already substantial.[3] Before an employer issues a form 1099 or form W-2, it needs to assess whether the worker is an employee or independent contractor under both New Jersey law and Internal Revenue Service (“IRS”) guidelines.

In New Jersey, a worker is legally an independent contractor only if the employer can demonstrate each of the following: (a) the worker has been and will continue to be free from control or direction over the performance of such service; (b) such service is either outside the usual course of business for which such service is performed, or that such service is performed outside of the place of business of the enterprise for which such service is performed; and (c) the worker is customarily engaged in an independently established trade, occupation, profession or business.[4]

On the other hand, the IRS considers a worker a common law employee by weighing three factors.[5] First, behavioral control is established if the employer has a right to control what the worker does and how the worker does his or her job. Second, financial control is established if the business aspects of the worker’s job is controlled by the employer, e.g, whether expenses are paid for or reimbursed, or whether tools are provided. Third, an employer-employee relationship is evidenced by written contracts, pension plans, vacation pay, or the like. If, after conducting this test, an employer is still unclear whether a worker is an employee or independent contractor, the employer may fill out and file a form SS-8 and the IRS will determine the worker’s classification. An employer that misclassifies an employee is free from liability if it can establish a reasonable basis.[6]

[1] See Report of Gov. Murphy’s Task Force on Employee Misclassification, https://www.nj.gov/labor/assets/PDFs/Misclassification20Report202019.pdf

[2] Leveling the Playing Field: Protecting Workers and Businesses Affected by Misclassification: Hearing Before the Subcomm. on Health, Educ., Labor, and Pensions, 111th Cong. 3 (2010) (statement of Colleen C. Gardner, Comm’r of the New York State Department of Labor), available at http://www.help.senate.gov/imo/media/doc/Gardner.pdf.

[3] See Ronald  R. Rubenfield, Tax Strategies for Classifying Employment: Employee v. Independent Contractor, 99 Prac. Tax Strategies 35, 37 (2017). See also N.J. Stat. Ann. § 34:20-5 (2007).

[4] See Hargrove v. Sleepy’s, LLC, 220 N.J. 289, 305 (2014).

[5]See Independent Contractor (Self-Employed) or Employee?, IRS, http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-Self-Employed-or-Employee. The IRS also specifies whether workers in certain occupations are per se employees or independent contractors. The list of statutory employees include: food, laundry, and delivery drivers, full-time insurance sales agents, a person that works at home on materials or goods that he or she supplies and that must be returned, and full-time travelling salespeople that work on behalf of a company. Statutory nonemployees include: direct sellers, licensed real estate agents, and certain companion sitters. See Statutory Employee, IRS, https://www.irs.gov/businesses/small-businesses-self-employed/statutory-employees; Statutory Nonemployees, IRS, https://www.irs.gov/businesses/small-businesses-self-employed/statutory-nonemployees.

[6] William H. Weissman, Section 530: Its History and Application in Light of the Federal Definition of the Employer-Employee Relationship for Federal Tax Purposes, Nat’l Ass’n of Tax Reporting & Prof’l Mgmt. (2009).

Cooper Levenson Tax Group Conducts New Jersey Society of CPAs Breakfast Seminar

Understanding the Bankruptcy process.
Presented by: Eric A. Browndorf, Esq.

The Essentials of Asset Protection Planning for CPAs
Presented by:  Michael L. Salad, Esq., LL.M.

New Jersey’s New Sick Leave Law: What CPAs Need to Know
Presented by: Amy E. Rudley, Esq. 

Recent IRS Rulings and Pronouncements from the United States and New Jersey Tax Courts, as well as Legislative and Regulatory Changes in the Tax Law
Presented by:  Robert E. Salad, Esq., LL.M.

Linwood Country Club
500 Shore Road
Linwood, NJ 08221
Breakfast & Registration 7:30 a.m.

Seminar 8:00 a.m. – 10:00 a.m.

REGISTER HERE

or call 973.226.4494

Cryptocurrency & Bankruptcy, Business Entities, Accounting Malpractice, Recent IRS and NJ Tax Court Rulings: Cooper Levenson Attorneys to Present at NJCPA event Feb. 8

Attorneys from the Atlantic City and Cherry Hill offices of Cooper Levenson will present a New Jersey Society of CPAs Atlantic Cape Chapter “Breakfast Briefing” on Friday February 8, 2019 at the Greate Bay Country Club in Somers Point, N.J.  Robert E. Salad, Esq., LL.M., Jarad K. Stiles, Esq., LL.M., ., Michael L. Salad, Jr., Esq.,  and Louis Niedelman will present and discuss the following topics:

Jarad K. Stiles, Esq., LL.M. : 
What Accountants Need to Know About Cryptocurrency and Bankruptcy

Michael L. Salad, Esq., LL.M.:
It’s Complicated: Choosing the Right Business Entity and Complex Tax Issues

Louis Niedelman, Esq.
What To Expect If You Are Sued For Accounting Malpractice

Robert E. Salad, Esq., LL.M. 
Recent IRS Rulings and Pronouncements from the United States and New Jersey Tax Courts, as well as Legislative and Regulatory Changes in the Tax Law.

Friday, February 8, 2019
Breakfast & Registration 7:30 a.m.
Seminar 8:00 a.m. – 10:00 a.m. 

Greate Bay Country Club
901 Somers Point – Mays Landing Road
Somers Point, NJ 08244

REGISTER HERE

or call 973.226.4494

 

New Jersey Tax Amnesty Program Set to Begin

Similar to New Jersey’s prior six amnesty initiatives, Governor Murphy signed a law in July 2018 that provides for complete forgiveness of certain New Jersey taxes (the “Amnesty Law”). With a start date of November 15, 2018 and an end date of January 15, 2019 (“Amnesty Period”), the Amnesty Law applies to state tax liabilities for tax returns due on or after February 1, 2009 and prior to Sept. 1, 2017.  During the Amnesty Period, a taxpayer who has failed to pay a state tax may pay the tax and one-half of the balance of the interest that is due as of Nov. 1, 2018.[1]

Participants in the Amnesty Law are relieved from paying one-half of the interest that is due as well as any late payment penalty, late filing penalty, cost of collection, delinquency penalty or recovery fee. However, the taxpayer is required to pay any civil fraud or criminal penalty arising from an obligation imposed under any New Jersey tax law. The Amnesty Law is not available to any taxpayer who at the time of payment is under criminal investigation or charged with a crime relating to any state tax matter. The Amnesty Law applies to all state taxes administered by the New Jersey Division of Taxation (“Division”) including gross income tax, sales and use tax, corporate business tax, motor fuels tax, etc. However, the Amnesty law does not apply to unemployment-type taxes administered by the New Jersey Department of Labor.

Full cooperation and transparency from the taxpayer is crucial during the Amnesty Period. A taxpayer’s participation in the Amnesty Law constitutes an express and absolute relinquishment of all administrative and judicial rights of appeal that have not expired when payment is made. No tax payment made under the Amnesty Law is eligible for refund or credit, whether claimed by an administrative protest or judicial appeal. The taxpayer must pay the full amount of the tax, reduced interest, and any applicable penalty under the rules and procedures established by the Director of the Division (“Director”).[2]  Notwithstanding this fact, a taxpayer may pay an amount that the taxpayer believes to be owed to the Division and continue to contest disputed taxes in excess of that amount. If a taxpayer has not previously filed a tax return to report the tax due for which the taxpayer is seeking amnesty, the taxpayer must file the required return by the end of the Amnesty Period.[3]

Tax amnesty primarily benefits a taxpayer that has already been assessed penalties, as interest is still imputed, in addition to penalties. New Jersey taxpayers will be subject to a five percent penalty that will be imposed on any New Jersey state tax liabilities that are eligible for amnesty but not satisfied during the Amnesty Period. This penalty is in addition to any other penalties, interest or costs of collection, and cannot be abated or waived.[4]  The Amnesty Law does not preclude a taxpayer that was eligible but failed to participate in past amnesty programs from participating in the 2018 amnesty program. Taxpayers who believe they owe any New Jersey taxes should assess whether a potential outstanding tax liability exists and consider utilizing the Amnesty Law to avoid penalties and interest.

Before participating in the amnesty program, New Jersey taxpayers should consider the Voluntary Disclosure Program (“VDP”), which is permanently available and offers a shorter window of liability, plus taxpayers will enjoy anonymity in submitting a VDP application. The VDP reaches further back to previous overdue tax liability to individual taxpayers and businesses and avoid hidden penalties.  Both programs offer advantages and disadvantages and each taxpayer should closely assess their specific situation with a tax professional before entering into either program.

Michael Salad is a partner in Cooper Levenson’s Business & Tax and Cyber Risk Management practice groups. He concentrates his practice on tax matters, estate planning, business transactions, mergers and acquisitions and cyber risk management. Michael holds an LL.M. in Estate Planning and Elder Law. Michael is licensed to practice law in New Jersey, Florida, Pennsylvania and the District of Columbia.  Michael may be reached at 609.572.7616 or via e-mail at msalad@cooperlevenson.com.

Craig Panholzer is a law clerk at Cooper Levenson who recently graduated from the University of South Carolina School of Law and graduated cum laude from Florida Atlantic University with a bachelor of arts and science degree in political science.

[1] N.J. Stat. Ann. § 54:53-20(a).

[2] N.J. Stat. Ann. § 54:53-20(f).

[3] N.J. Stat. Ann. § 54:53-20(c).

[4] N.J. Stat. Ann. § 54:53-20(b).

Cooper Levenson Attorneys Speak at NJCPA Atlantic Cape Chapter Seminar Oct. 31

Don’t miss this NJCPA Atlantic/Cape May Chapter Breakfast Briefing
Wednesday, October 31, 2018   8:15 a.m. – 12:15 p.m. 

Topics include:

Selecting the Best Retirement Plan Under the Tax Cuts & Jobs Act: Presented by Jarad K. Stiles, Esq., LL.M.

#MeToo & You… and Other Significant Developments in Employment Law: Presented by Russell L. Lichtenstein, Esq.

Tax Amnesty v. Voluntary Disclosure Program: What Makes Sense for Your Clients: Presented by Michael L. Salad, Esq., LL.M.

Uncovering Life Settlement Opportunities: What CPAs Need to Know: Presented by Drew Grifo, Principal, Commonwealth Capital Brokerage

Yours, Mine, and the Tax Man’s: Tax Considerations when Dividing Property in Divorce: Presented by Ronald G. Lieberman and Alexandra Rigden

New Jersey Cannabis Update for CPAs: Presented by Jill T. Ojserkis, Esq., LL.M. and Brittany A. Bonetti, Esq.

Recent IRS Rulings and Pronouncements from the United States and New Jersey Tax Courts, as well as Legislative and Regulatory Changes in the Tax Law: Presented by Robert E. Salad, Esq., LL.M.

Linwood Country Club
500 Shore Road
Linwood, NJ 08221
REGISTER HERE
or call 973.226.4494

Michael L. Salad and Jarad K. Stiles to speak on Sept. 25: Planned Giving Panel Discussion

September 25, 2018 8:00-10:00
Stockton’s Carnegie Center
35 S Martin Luther King Blvd
Atlantic City NJ 08401

Registration: www.acchamber.com/events/power-breakfast-panel 

$20.00/Chamber Members FREE

Michael L. Salad, Esq., LL.M.  (Moderator) Business & Tax and Cyber Risk Management, Partner, Cooper Levenson

Anthony Fraizer—Executive Director of the Community Foundation of South Jersey

Jarad K. Stiles, Esq., LL.M.Tax Law and Estate Planning & Administration, Attorney, Cooper Levenson

Theodore Joyce—Senior Manager in the Tax Advisory Group (TAG) of HBK CPAs and Consultants

Chris DeYoung (not pictured) President, DeYoung Financial Group

 

 

 

 

 

 

 

Cooper Levenson attorneys to present on Asset Protection, Buying and Selling Real Estate in Light of new Tax Laws, and more at the NJCPA Atlantic Cape Chapter Briefing July 12

ATLANTIC CITY, N.J. –  Tax attorneys from the Atlantic City and Cherry Hill offices of Cooper Levenson will present a tax “Breakfast Briefing” on Thursday July 12, 2018 at the Linwood Country Club in Linwood, N.J.  Robert E. Salad, Esq., LL.M., Jarad K. Stiles, Esq., LL.M., Arthur Korth, Esq., LL.M., Michael L. Salad, Jr., Esq., Nicholas F. Talvacchia, Esq., Jill T. Ojserkis, Esq., LL.M., and Brittany A. Bonetti, Esq. , along with Thomas W. Raftery III of Falcon Consulting Group, will present and discuss the following topics:

Who Needs Asset Protection? Spoiler Alert: Everyone.
by Jarad K. Stiles, Esq., LL.M.

Hidden Figures (Not The Movie): Finding and Protecting Assets.
by Thomas W. Raftery III

Flip That House? Buying and Selling Real Estate in Light of New Tax Laws.
by Michael L. Salad, Esq., LL.M.

Essentials for Maximizing the Value of a Business: Valuation, Selling Assets v. Stock and More.
by Arthur Korth, Esq. LL.M.

What CPAs Need to Know about the Opportunities in Opportunity Zones: incentives, tax deferment, capital gain treatment, census tracts & more.
by Nicholas F. Talvacchia, Esq.

Green Rush: What CPAs Need to Know about the Future of Cannabis in New Jersey.
by Jill T. Ojserkis, Esq., LL.M.  and Brittany A. Bonetti, Esq.

Recent IRS Rulings and Pronouncements from the United States and New Jersey Tax Courts, as well as Legislative and Regulatory Changes in the Tax Law.
by Robert E. Salad, Esq., LL.M.

Register today.

Jarad Stiles to speak at Absecon Business & Commercial Development meeting March 14

See our album of photos from last night’s event with the Absecon Business & Commercial Development General Membership Meeting on March 14.

PLACE: Villa Rifici’s, 308 White Horse Pike, Absecon.

MEET & GREET: 5:30 pm Meet & Greet with appetizers and cash bar

GUEST SPEAKER: 6:15 p. Jarad K. Stiles, Business Tax Attorney from Cooper Levenson, Attorneys at Law

TOPIC: “How the 2017 Tax Reform will affect Businesses and Succession Planning”

DATE: Wednesday, March 14

FEE: $10

Read more about speaker Jarad K. Stiles

 

Mark Your Calendar: July 12 NJCPA Summer Breakfast Seminar with Cooper Levenson Attorneys

CPAs – Don’t miss this annual summer update. Hear from the attorneys at Cooper Levenson as they discuss issues that affect CPAs on both the state and national levels. Breakfast seminar 8 a.m. – noon. Venue TBA.

Topics to include:

  • Who Needs Asset Protection? Spoiler Alert: Everyone
  • Hidden Figures (Not The Movie): Finding and Protecting Assets
  • Flip That House? Buying and Selling Real Estate in Light of New Tax Laws
  • Essentials for Maximizing the Value of a Business: Valuation, Selling Assets v. Stock and More
  • Green Rush: What CPAs Need to Know about the Future of Cannabis in New Jersey
  • Recent IRS Rulings and Pronouncements from the United States and New Jersey Tax Courts