Additional Guidance for Coronavirus-Related Distributions and Loans Under the CARES Act

On June 19, 2020, the Internal Revenue Service (the “IRS”) issued Notice 2020-50 which expands the categories of individuals eligible for coronavirus-related distributions (“CRDs”), loans, and loan repayment suspensions as well as resolves some of the issues that were concerning plan administrators and employers under the CARES Act. Under Section 2202 of the CARES Act, a qualifying CRD, which is subject to an aggregate $100,000 maximum, is: (1) not subject to the 10% additional tax on early distributions, (2) generally includible in income over a 3-year period, and (3) to the extent the distribution is eligible for tax-free rollover treatment and is contributed to an eligible retirement plan within a 3-year period, will not be included in income. Section 2202 also provides that: (1) for loans made during on or after March 27, 2020 (the date of enactment of the CARES Act) and before September 23, 2020, the limit on loans from an eligible retirement plan is raised to the lesser of $100,000 (reduced by the excess of outstanding loans) or 100% of the participant’s vested accrued benefit; and (2) for loans with outstanding balances on or after March 27, 2020, a one-year delay in loan repayment due dates is provided with respect to due dates occurring during the period from March 27, 2020, to December 31, 2020. For more information on these CARES Act topics see our prior newsletter here. Continue Reading

U.S. Supreme Court Rules That Federal Anti-Discrimination Law Protects Gay And Transgender Workers

On June 15, 2020, the United States Supreme Court ruled that Title VII of the Civil Rights Act of 1964 (“Title VII”) – which bans employment discrimination on the basis of race, color, religion, national origin, and sex – prohibits discrimination based on sexual orientation and transgender status. This decision marks a pivotal change from prior decisions of federal appellate and district courts which held that Title VII only banned discrimination based on the biological distinctions between persons born as male and female. It also obviates the need for the types of bills that have been submitted to Congress annually to expand the language of Title VII to include references to sexual orientation, gender stereotyping, and gender identity. Continue Reading

Changes to PPP Loans by the Paycheck Protection Program (PPP) Flexibility Act of 2020

Updated July 8, 2020

On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act, also known as the CARES Act, which established, in relevant part, the Paycheck Protection Program (PPP), a loan program that offers eligible borrowers the potential for loan forgiveness. For more information on the PPP and other CARES Act lending programs, click here, and for information about applying for PPP loans, click here. Continue Reading

Trudging the Rocky Landscape of Royalty Dispute Litigation with the Texas Supreme Court Yet Again in BlueStone

With the prevalence of cases involving royalty disputes in Texas, the state’s Supreme Court has never hesitated to address these issues.  But the Court’s sporadic holdings regarding royalty clauses, each so specific to the particular language of the lease, have left lessees on unsteady footing.  BlueStone primes the Court to resolve a Texas appellate court split regarding whether a lease provision requiring royalties to be paid based on “gross” profits or value received from the sale of oil and gas production nullifies an “at the well” valuation point elsewhere in a lease. Continue Reading

Climate Change Jurisdiction: U.S. Court of Appeals for the Ninth Circuit Kicks Climate Change Case Back to State Court

Amidst historically low oil prices and economic shutdowns, fossil fuel companies continue to defend against lawsuits brought by state and local governments claiming climate-change related damages.  In two companion cases, a panel of the United States Court of Appeals for the Ninth Circuit decided whether a federal district court could properly exercise jurisdiction over climate change suits brought against energy companies by cities and counties in California.  In County of San Mateo et al. v. Chevron Corporation et al., Docket No. 18-15499, the Ninth Circuit held that 28 U.S.C. § 1447(d) limited appellate review of an order to remand to the extent the order addressed whether removal was proper under the federal officer removal statute, 28 U.S.C. § 1442(a)(1).  The Ninth Circuit further held that the district court did not err in finding that it lacked subject matter jurisdiction under the federal-officer removal statute.  In City of Oakland et al. v. BP PLC et al., Docket No. 18-16663, the Ninth Circuit vacated the district court’s order denying remand and sent the case back to the federal district court with instructions to consider whether alternative grounds for subject-matter jurisdiction exist. Continue Reading

Guidance and Relief for Retirement Plans Due to the COVID-19 Pandemic

The Department of Labor (the “DOL”), the Treasury Department (the “Treasury”), and the Internal Revenue Service (the “IRS”)  have recently issued guidance extending certain deadlines and providing certain relief for retirement plans in response to the current COVID-19 pandemic. Discussed below are (1) EBSA Disaster Relief Notice 2020-01, (2) DOL “COVID-19 FAQs for Participants and Beneficiaries,” (3) IRS Notice 2020-23, and (4)  IRS “Coronavirus-related relief for retirement plans and IRAs questions and answers.” Continue Reading

OSHA Addresses Reporting COVID-19 Cases as Job-Related and In-Person Workplace Inspections

On May 19, 2020, the Occupational Safety and Health Administration (“OSHA”) issued two noteworthy enforcement memos. The first memo announced the reversal of OSHA’s April 10, 2020 policy that limited the requirement to track on-the-job cases of COVID-19 to health-care facilities, emergency response providers, and corrections facilities. The new policy, which goes into effect on May 26, 2020, mandates that all employers who are required to maintain OSHA injury and illness logs determine whether employees’ cases of the COVID-19 virus are “work-related” and record those that meet certain requirements. Specifically, employers subject to OSHA’s recordkeeping requirements must record a case of COVID-19 as job-related if (1) it is a confirmed case of the virus as defined by the CDC, (2) it is “work-related” in that an event or exposure in the work environment either contributed to or caused an employee to contract the virus, and (3) it results in death, days away from work, restricted work or transfer, medical treatment beyond first aid, or loss of consciousness or involves a significant diagnosed injury or illness. Employers who have no recordkeeping obligations need only report work-related COVID-19 illnesses resulting in an employee’s death or in-patient hospitalization, amputation, or loss of an eye. Continue Reading

Applying for Loan Forgiveness under the Paycheck Protection Program (PPP)

Updated June 23, 2020

On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act, also known as the CARES Act, which established, in relevant part, the Paycheck Protection Program (PPP), a loan program that offers eligible borrowers the potential for loan forgiveness. For more information on the PPP and other CARES Act lending programs, click here, and for information about applying for PPP loans, click here.

On June 5, 2020, President Trump signed into law the Paycheck Protection Program Flexibility Act of 2020 (the Flexibility Act), which amends the CARES Act to make certain changes to PPP loans and to provide more flexibility to borrowers. For an overview of the changes made by the Flexibility Act, click here. To the extent available, this blog post has been updated to incorporate the changes made by the Flexibility Act.

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Third Circuit Issues New Act 312 Decision Involving Prescription and Breach of Contract

The Louisiana Third Circuit Court of Appeal recently issued an opinion involving issues of prescription and breach of contract claims in the context of Act 312 and “legacy lawsuits” that oil and gas companies must remain cognizant of going forward. In State of Louisiana, et al. v. Louisiana Land & Exploration Co., et al., the Third Circuit affirmed the Vermilion Parish School Board’s authority to sue on behalf of the state, rejected a prescription defense on the basis of prescription immunity under the Louisiana Constitution, and concluded that a finding of “environmental damage” as defined under Act 312 is sufficient to trigger a breach of contract claim. Continue Reading

IRS Updates Guidance on Temporary Procedures to Fax Forms 1139 and 1045 to Obtain Quick Tentative Refunds due to NOL Carrybacks and Accelerated Use of AMT Carryforward Credits

In an April 17, 2020 post to the Liskow Energy Law Blog, we advised our clients and friends that the Internal Revenue Service (“IRS”) had published guidance on how refunds attributable to the CARES Act newly-permitted 5-year carryback of NOLs in section 172 of the Internal Revenue Code (the “Code”) and the accelerated use of AMT Carryforward Credits in section 53(e) of the Code can be obtained.   See, J. Bradford, New IRS Guidance on Obtaining Refunds for Net Operating Loss Carrybacks, Corporate AMT Carryforward Credits and Filing Amended Returns for Partnerships (the “Prior Blog Post”).[1]  Since that time, the IRS has published on its website additional guidance in the form of frequently-asked questions and responses (“FAQs”) regarding the implementation of the temporary policy allowing (1) corporations to file by fax Form 1139 – Corporation Application for Tentative Refund (“Form 1139”) to obtain a tentative refund for a prior tax year to which an NOL is carried back pursuant to the new NOL carryback rules and to obtain a tentative refund attributable to implementing the new accelerated use of AMT Carryforward Credits and (2) individuals to file by fax Form 1045 – Application for Tentative Refund (“Form 1045”) to obtain a tentative refund for a prior tax year to which an NOL is carried back.[2] Continue Reading

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