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internationallawsection.org                                                    Friday June 21, 2019
The International Law Section Gazette
Section News
The ILS at the 2019 Florida Bar Annual Convention



Please join The Florida Bar International Law Section at the 69th Florida Bar Annual Convention, which will be held at the Boca Raton Resort & Club, 501 E. Camino Real, Boca Raton, FL 33432 from June 26-29, 2019. Following is a complete schedule of the International Law Section program:


 
For The Florida Bar Annual Convention Page on The Florida Bar website, Click HERE.

Please do not forget to download the 2019 Annual Florida Convention Mobile App. It is available for Apple and Android mobile devices and tablets and will allow users to get an up-to-date schedule, create their own schedule, get important notices and hotel maps, see and post to the Activity Feed/Social Wall, use the hashtag #MyFloridaBar, and much more. 













ILS Executive Council Meeting on June 28, 2019

During The Florida Bar Annual Convention, the Florida Bar International Law Section will hold its Executive Council Meeting on Friday June 28, 2019 at 10:00 a.m. The Meeting will take place in the Grand Ballroom I of the Boca Raton Resort & Club, 501 E. Camino Real, Boca Raton, FL 33432.  Immediately thereafter, the International Law Section will host its Luncheon.
International Law Section - Call for Committee Members

The International Law Section Foreign Legal Consultants Committee and Legislative Committee call for all Members to join their ranks for the 2019-2020 bar year. Join Today! 

For additional information, please email the ILS Chair-Elect Clarissa Rodriguez, clarissa@reichrodriguez.com, or ILS Secretary Robert Becerra, rbecerra@rjbecerralaw.com.

International Law Section - Call for Member News

The Executive Board of the International Law Section calls for all Members to share news about their professional achievements, endeavors, and successes to be published in the Gazette and on the International Law Section website. 

To share your professional achievements with the ILS Network, please submit all relevant information to Davide Macelloni, Editor of the ILS Gazette.

Join the International Law Section 

If you are reading the Gazette, chances are that you are a practitioner or a student with an interest in International Law , one of the most wide-ranging, exciting and challenging legal specialties. Everyone in our field knows how crucial it is to stay on top of diverse and evolving national legal regimes, and at the same time, the difficulty of keeping meticulously up-to-date on developments around the world.

The International Law Section (ILS) of The Florida Bar is here to help you, the practitioner, navigate both the everyday and big-picture challenges of our field. Our Section is your forum to share knowledge and best practices, and to meet and mingle with peers in professional collaborations that can only enhance your grasp of the specialty and your standing among clients and peers.

Let ILS membership assist you in developing a thriving international practice through peer network development that includes important shared learnings and reciprocal referrals of clients and casework.

If your practice transcends borders, join us in making this the authoritative, go-to forum for Florida and the gateway to the region for anyone practicing International Law.  Our Section is open to lawyers from other states and countries, full-time faculty at U.S. law schools, and full-time U.S. law students , all of whom may participate as associate members. For more information regarding membership with the ILS, click HERE.


Available CLEs

During the Spring, the Florida Bar International Law Section proudly offered CLE webinars on a wide variety of topics, including H-1B Processing, Key Changes in EU General Data Protection Regulations, and FIFA Transfer Rules and the Court of Arbitration for Sports. All past programs have a link to register for on demand and downloadable podcasts for the next 18 months.




From Our Members
John Doe Summons on Law Firm Upheld

By Geoffrey M. Wayne*
 
The Attorney Client Privilege recently went toe-to-toe with an IRS John Doe Summons in a Texas Federal District Court, and the John Doe Summons prevailed. Taylor Lohmeyer Law Firm PLLC v. United States (Civil Action No. SA-18-CV-1161-XR). 

The Taylor Lohmeyer firm ("TL") was a Dallas, Texas firm engaged in tax planning, including income and estate tax planning utilizing foreign trusts. TL advised a hedge fund manager ("Taxpayer") in connection with reducing income tax on certain fees he was to receive from offshore sources. While TL would later defend their advice - which included the creation of a foreign grantor trust in the Isle of Man - upon auditing Taxpayer, the IRS assessed, and Taxpayer paid, a civil fraud penalty in connection with the income he failed to report after implementing that advice. The advice was not sound, to say the least. Sometime after beginning the audit of Taxpayer, the IRS came to believe that TL had implemented similar abusive tax planning for other clients. The IRS did not know the identity of those clients and, so, issued a John Doe Summons for the names, information, and documentation of clients from 1995 to 2017 for whom TL had "acquired or formed any foreign entity, opened or maintained any foreign financial account, or assisted in the conduct of any foreign financial transaction". 

A John Doe Summons is authorized under IRC § 7609(f) and does not list the taxpayer's name since it is unknown. Because of the attenuated nature of the John Doe Summons, it must be approved by a Federal District Court in an ex parte hearing. IRC § 7609(f) imposes additional requirements designed to prevent a "fishing expedition." Service of the Summons was followed by a Motion to Quash, Memoranda in Support, Responses to Memoranda in Support, and several hearings (click here). The Motion to Quash was based on a number of arguments which the Court ultimately rejected. The Court noted that once it orders service of the Summons, the IRS' burden is quite limited whereas the taxpayer's burden is heavy. Apart from arguments based on case law - including United States v. Powell, 379 U.S. 48 (1964), which imposes a good faith requirement and reiterates the statutory requirements - TL raised the defense of attorney client privilege.

This is where this case is instructive and worrisome.

The Court recognized that the privilege is a defense to enforcement of a summons. The Court also recognized that the privilege could be a defense to the disclosure of even a client's name when disclosure of the client's name would disclose the essence of a confidential communication. However, the Court noted that "the party seeking to assert the privilege must allege its applicability with specificity as to each document." The Government argued that TL had to produce a privilege log with specific objections to the Summons. TL argued that there were 32,000 documents responsive to the Summons, and attempted to avoid the filing of a privilege log by filing a Memorandum detailing "the types of legal services the firm provides, the types of structures employed by the firm's clients, and the nature of the firm's relationships with its clients." The Court ruled that TL did "not meet its burden to rebut a Powell showing, in large part because [TL] makes a blanket assertion and does not produce a privilege log or similar device." The Court further ruled that the Memorandum "provides only generalities that do not show the IRS already knows so much that disclosure of client identities falls in the narrow exception to the general rule that identities are not privileged". 

The instructive part of this case is that even when dealing with a summons on a law firm, a privilege log, and the specificity of information included within, is required to assert the privilege. However, this is also the worrisome part of the case. Which small to medium size firm is prepared to devote the resources necessary to assert the privilege if the IRS serves a summons related to clients over the last 23 years? While the privilege is the client's to assert and, presumably, the clients would bear the cost of such a gargantuan effort, it would undoubtedly be tremendously disruptive.

*Geoffrey M. Wayne is the founder of Geoffrey M. Wayne, P.A., a boutique law firm located in Coral Gables focusing on individual and corporate issues related to international taxation. 


Use of the B-1 Visa "In Lieu of H-1" - A Temporary Work Visa Off the Beaten Track

By Axel Heydasch*
 
Foreign nationals who wish to engage in gainful employment in the United States require prior governmental permission in the form of a visa issued by the U.S. State Department. There are different categories of non-immigrant visas for foreign nationals who intend to work in the United States temporarily.  Each of these visas has a clearly defined use, and both the U.S. employer and the foreign visa applicant must satisfy stringent and detailed requirements to obtain a visa. The application process is complex and comprehensive and may involve obtaining prior permissions from various government departments, or, as is the case with foreign artists or athletes, opinion letters from government recognised private entities such as trade unions and industry specific organizations.

By far the most popular visa category used by the majority of foreign visitors to the United States is the B-1/B-2 visa, which permits its holder to visit the United States for business or pleasure. The application process for this visa is less comprehensive that for other non-immigrant visas, and applicants have to deal with only one government department, the U.S. State Department.  On the business side, the regulations enumerate a number of activities a foreign visitor may engage in on a B-1 Business visa. Examples of these activities include attending board of directors' meetings, investigating investment opportunities, or soliciting orders in the United States for a foreign employer.

Among the permitted uses of a B-1 visa is the ability to engage in short term employment in the United States in a specialty occupation for qualified foreign employees.  The requirements regarding the type of employment and the qualifications of the applicant to engage in such employment mirror those of an H-1B visa, and this limited use of the B-1 visa is known as "B-1 in lieu of H-1". This use of the B-1 visa permits a foreign employer to send a qualified foreign employee to the United States to engage in a specialty occupation on behalf of the foreign employer for a limited purpose and limited period of time, without having to obtain permission from the U.S. Labor Department, and filing a petition on behalf of the employee with United States Citizenship and Immigration Services (USCIS) as conditions precedent to the actual visa application. The activities and the applicant must meet the requirements for an H-1B, in that the activities must meet the definition of a specialty occupation, which requires the applicant to possess at least a bachelor's degree or equivalent as a pre-requisite in order to engage in the activities.  Neither the regulations nor the Foreign Affairs Manual further define the limits of the activities the foreign employee may engage in.  A U.S. State Department  guidance cable of October 2012 on the subject, states that a B-1 in lieu of H-1  "may be used for activities that would normally require an H-1B."

In addition to satisfying the requirements for an H-1B visa, the B-1 applicant must overcome the statutory presumption of immigrant intent, required of every applicant for a non-immigrant visa.  Specific to the application for the "in lieu" use of the B-1 is the existence of an employment relationship with the foreign employer. The foreign employee may receive a salary or other remuneration from the foreign employer - other than an expense allowance or expense reimbursement - only from sources outside of the United States.

It is the foreign employer's obligation to supervise and direct the activities of the foreign employee at all times during the proposed stay in the United States.  This is of particular significance if the employee's activities are to be undertaken on-site at a U.S. business location.  The primary benefit of the stay must accrue to the foreign employer or further international commerce.  There must be a showing of the temporary nature of the stay.  The foreign national should be entering the U.S. for a specific and limited period of stay that is consistent with the purpose of the trip, generally not to exceed six months.

Although the "in lieu of" usage of the B-1 visa may be a useful tool for a foreign entity to permit its employees to engage in short term projects in the United States, the uncharacteristically vague definition of the permitted activities have led to abuses of this visa in the past. These abuses have resulted in calls for the elimination of this B-1 visa use, and increased scrutiny of visa applications in this category.  To date, this use of the B-1 visa remains on the books, but interested applicants need to proceed with caution, and provide the reviewing U.S. consular post with ample and adequate documentation to support the granting of a B-1 in lieu of an H-1B visa.

*Axel Heydasch is the principal of Heydasch Law, PLLC, a law firm located in Coral Gables focusing on business and immigration law. Axel Heydasch has also recently become of-counsel to the law firm of Geoffrey M. Wayne, P.A.


Upcoming Events
June 26-28, 2019


Please join the University of Miami School of Law for its Program on  Managing Compliance Across Borders , presented in collaboration with the University of St. Gallen Executive School of Management, Technology and Law. The three-day program will be held at the Donna E. Shalala Student Center, 1330 Miller Drive, Miami, FL 33146, and is an intensive and interactive executive-level program aimed at compliance, risk an audit management counsel and executives from firms and corporations, whether they work in companies, regulatory authorities, or professional firms. Many ILS members, including Richard Montes De Oca, Managing Partner of MDO Partners, Peter A. Quinter, Chair of the Custom and International Trade Practice at GrayRobinson, Rafael R. Ribeiro, Partner at Hogan Lovells LLP, and Marcia Narine Weldon, Professor of Law at the University of Miami Law School, will be among the esteemed guests, panelists, and moderators. For the program schedule and a full list of speakers, click here. To RSVP, click here.

July 8-11, 2019
Please join the Illustre Collegi de l'Advocacia de Barcelona (ICAB) for its 2019 Summer Law course. The 4-day program will include, among others, panels on Information Technology Law and Tax and Compliance Law. For additional information and registration, please click here. For the complete program, click here.

September 3-7, 2019
T he 57th International Young Lawyers' Congress of the  Association Internationale des Jeunes Avocats - International Association of Young Lawyers  will take place in Rome, Italy. The event will be an opportunity to network and learn with a focus on "Sustainability and the Law. Planet. People. Future." For more information or to register, please  refer to th event's website .

September 22-27, 2019
The  International Bar Association invites all members to attend its 2019 annual conference, which will be held in  Seoul, South Korea , a thriving metropolis that mixes the traditional with the modern - from skyscrapers, high-tech subways, K-pop culture and K-beauty to Buddhist temples, palaces and street markets and a history going back 5,000 years. For more information or to register, please refer to the event's website .



Winter 2019 ILQ
International Law Quarterly: Winter 2019

The new issue of the International Law Quarterly - Focus on International Human Rights is now available. Click on the image below to download.


Visit our Sponsors                                             
ILS Thanks its Sponsors 

In light of what we accomplished this past year, we hope you will continue to support the Section as a sponsor. In 2018-2019, various firms, companies and suppliers sponsored the Section. 

We look forward to another year of innovative programs where we can advance international law and further promote our sponsors. To learn more, read the Section's sponsorship package. You can also c ontact our Treasurer, James Meyer at jmeyer@harpermeyer.com  for more details.

  BECOME A SPONSOR  for the 2019-2020 Cycle!
The ILS Gazette


Chair: Carlos F. Osorio
Immediate Past Chair: Arnoldo B. Lacayo
Chair-Elect:  Clarissa Rodriguez
Secretary:  Robert J. Becerra
Treasurer: James Meyer