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Free Joe Friday 1/7/11 – Protecting Ideas, Taxes, and More

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Every Friday, attorney Joe Escalante answers legal questions for free on the LegalZoom Facebook Page. Did you miss last week’s Free Joe Friday? Don’t worry. We’ve got it all right here.

LegalZoom: Welcome to the first Free Joe Friday from the new LegalZoom office in Glendale! Say hello to Joe Escalante of Barely Legal Radio, who’s here to answer your legal questions!

First question from Crystal: Can I add new products to my corporation without issue? Just started a corp in ’10 and would like to add some new products in the same line (body/hair care) but would also like to sell eggs through the corp. Is that ok or a no no?

Joe Escalante: Crystal, What you can do with your corp is dictated by your articles of incorporation. Read them, and remind yourself what your corp is set up to do. I own a couple corps and in my articles it says the corp can engage in “any lawful business.” So I can sell eggs, and you can too without any problems from other shareholders, etc. if yours is set up this way. Ironically, one of the only things you cannot sell, is Crystal.

Ken asks: Can I sue the VA for medical care. I had to wait over 14 years to be seen by a dr. I have a 100 percent non service connected disability because I couldn’t see a dr

Joe Escalante: You can, it’s hard mainly because I think you have to sue them in federal court and cases are not decided by a jury, but by some kind of a Dr. Zaius type 3 judge panel. You need a medical malpractice attorney who has successfully sued the V.A. before and you’re golden. I fell asleep last night during Matlock, can you tell me how it ended by any chance?

From Ayishah: Can money owed to state and city government agencies be discharged during bankruptcy?

Joe Escalante: Debts for taxes owed to local, state or federal agencies cannot typically discharged in bankruptcy. so if this is the majority of your debts, think it through!

Tim: What is the simplest and most basic way to protect an idea (intellectual property) when you’ve had it? Something that give you at least the minimum legal protection of ownership/copyright, especially when you work in an ideas-based and consulting business?

Joe Escalante: At this time, there is no offical protection offered for ideas. You can copyright the creative expression of an idea, in fact there is an inherent copyright in everything you create. Society does not have an interest in protecting ideas, we would like every body to take a crack at doing something with yours or anyone’s ideas.
Having said that, there could be state protection for your idea if you had an agreement with that person not to exploit it.

If your idea is for an invention you could apply for a provisional patent right here at legalzoom. My lady willl give you the link. Trademarks are similar to copyrights, you have to be using them to get protection, you can’t get protection for things that you just think about and sit on.

LegalZoom: Hi, Tim. Here’s the link to our provisional patent service: http://www.legalzoom.com/provisional-patents/provisional-patents-overview.html

Tim again: Thanks Joe. I totally understand your point about cross-pollination of ideas and not sitting on them. I suppose my main concern is when you have a concept or design in sketch form, as you’re in the process of taking it to market. Of course, we rely on typical NDA’s, but the process requires that you share the IP with many others (manufacturers, designers, etc) and in the time it takes to produce, it can be exposed.

So would that inherent copyright be sufficient enough protection to offer at least minimum protection until you can get it off the ground and obtain the provisional patent and trademark, or do you suggest having that as a minimum before even sharing? Thanks again.

Joe Escalante: if you have drawings, you can always copyright those drawings but it wouldn’t prevent anyone from redrawing them, and using any ideas they can cull. If it is something that can be patented, get the provisional patent. If it can’t be patented, you have to rely on NDAs, and your reputation. That’s why people hire attorneys with good reputations because people are less likely to screw them in these situations.

Jen: I have Power of Attorney for my 80 yr old dad w/ Alzheimer’s. He lives in AZ & I live in IL. How do I petition for guardianship? Do I do it in AZ or IL? I’d like to move him to an assisted living facility in IL. Also, I’d like him to be eligible for benefits the state/county offers since he’s low income/minimal assets. If I’m his guardian, would his residence change to IL since that’s where I reside? Thanks Joe!

Joe Escalante: You can be his legal guardian and live in another state. You would have a heck of a time getting him benefits from a county he doesn’t live in so I would stick with the services offered in the state where he lives. If he needs any Matlock updates, have him log on as well.

Nicole: I’ve had a idea for my own t-shirt business for about 5 years now but my problem was always no $ to get it going. I still have my brand name and ideas. I’ve heard you can self copyright but is that really go enough legally and I know I can’t have it copy written back to 2006 either right. but is their a easier way to do it while I get money to do it the real legal way?? Thank you Joe !!

Joe Escalante: Nicole, if you’re talking about t-shirt designs like kick ass unicorm images or lovely cats, you can protect these cheaply by putting them in a booklet and copyrighting the entire collection as one creative work. Name it something like “Nicole’s kick ass unicorns and lovely cats.” This will cost you approx. $30.00 in money and it will give you peace of mind. If you are baffled by all this, have legalzoom do it for you for a nominal fee. My lady will give you the link.

LegalZoom: Here’s the link to our copyright service Nicole. Let us know if we can help! http://www.legalzoom.com/legal-copyrights/copyrights-overview.html

Jeff: Is there another “classification” for janitorial, house cleaning, maid work or housekeeper? We did NOT know that this classification was subject to sales tax. We do cleaning in the gas and oil field in company trailers on site. (rig locations) Is there a “broader” classification for the business. We also do consulting & that is not subject to sales tax. Any help in this matter would be great!!

Joe Escalante: These taxes vary from state to state, county to county, and city to city, so you would have to consult the Secretary of State’s office and get some clarification from them. Where I live, services like this are not taxed in this way. But I live in Tijuana, most of the time.
Also, you need a good tax accountant. Now is a good time to get one. We’re at the beginning of the year, you need to get organized. Don’t skimp on the tax lady. My tax person is a lady, so I assume they all are. I’m very sorry for that assumption.

Carlos: I have a small Business started back in august. i currently do not hold a TIN for it i have applied for it though, i have bought some office supplies for my business, can i write that off as a business expense on my taxes this year ?

Joe Escalante: Tax ladies can do a lot of creative things with your business losses like carrying them over to subsequent years but this is tax advice and you need an accountant familiar with the tax code to advise you. Do it.

Jeremy: Is it possible to be sales tax exempt when purchasing business supplies? I’ve been told that this is true by several business owners. If so, how do I take advantage of this?

Joe Escalante: In California it works like this. You get a resellers permit to avoid buying things that you’re going to re-sell. You get this permit from the State Board Of Equalization. However, if you’re not reselling the stuff. This won’t apply to you. Usually you can deduct the cost of purchasing these supplies if you’re usuing them and not selling them, but that’s a tax issue for your tax lady.

Angela: Joe, how far back can the IRS go & request receipts for construction of a building used for the small business? We are being audited as a business and personally, with just one real property asset, & they are requesting receipts from the construction costs of the building. It was built 11 years ago & we have not kept all of those records going that far back. Any advice would be greatly appreciated.

Joe Escalante: 11 years is unreasonable and I’ve never heard of such a demand. My tax lady makes me hang on to stuff for like 8 years. Again, this is a tax question for your tax lady. If you’re getting audited and you don’t have a tax lady, get one now. This is a good interview question for picking one.

Kelly: i have an idea that would really go far. I have talked with a company, but really would like to know if these people are for real. they wanted several hundred dollars to get my idea up and running. that would pay for the designing. please let me know what I should do first. maybe hire a lawyer????

Joe Escalante: I would file for a provisional patent first. That will allow you to use the term “patent pending” and it is inexpensive to do. Legalzoom can help you with this. Then I would spend a few hundered dollars for a consultation with a patent attorney. I would not advise giving money to one of these “invention companies” that promise to get your idea on the market for a fee. Speak to an experienced attorney before you do that. Get one of the Nolo Press books on patent law as well. There are a lot of mistakes you could be making. Legalzoom can get you a good patent attorney referral as well. My lady will give you the details.

LegalZoom: Hi Kelly,
Here’s the link for our provisional patent service: http://www.legalzoom.com/provisional-patents/provisional-patents-overview.html
And here’s the link for our Attorney Connect service: http://attorneyconnect.legalzoom.com/
Hope it helps!

Keith: i have a question about a legal name change im 54yrs old never knew my bio dad my birth certificate has my bio dad last name i was getting a new driver lic they needed my birth certifcate now i was adoted by my dad at 3yrs old and i cant find any proof of being adopted dad died 2yrs ago and moms mind is gone so no help there all my everything ss card militery marryed 30yrs all in my dads last name any help out there

Joe Escalante: What You Will Need if You do Not Have a Certified Birth Certificate
Contact your states Department of Vital Records. Ask them how to get a “letter of No Record” which shows that you have no birth certificate, but that you did make an attempt to search for the records to establish that you’re not making this stuff up. Then assemble any records you have like baptism, census records, early school records, early doctor care records.

You may also submit an Affidavit of Birth form DS-10 from an older blood relative, i.e.: a parent, aunt, uncle or sibling who has personal knowledge of your birth. It must be notarized or show the seal and signature of the acceptance agent.

take all this stuff and get a passport with it and you should have no problem getting a driver’s license or anything else in the future. And you can take a trip to Tijuana or some cool place like that.

Shanesta: Hello Joe, I am starting my divorce but m husband lives in another state. The courts are giving me a hard time with the divorce paper work since he lives in another state. We have no assets except a car and it is in his name. What steps can I take to get it transferred in my name. Thank you so much for all your help :-)

Joe Escalante: If it is jointly owned you have two choices. 1. Wait for the divorce to be finalized. There should be an order on how to dispose of the car, i.e., who gets it, or if it should be sold and split. 2. Get your ex to sign it over to you by being nice to him, or giving him money for his 1/2. That would be the quickest. You can make a deal with him now. Give him something he wants.

Barry: Are all business legal and should they be? So they hav some sort of certification! thank U Joe E, and HNY.

Joe Escalante: Legal ones are legal. Illegal ones are illegal. Local areas require business licenses and typically will not license an illegal operation. But, what gangsters have done in the past is pay money into something called a tax pool or something like that. Then if they were caught later, there would at least be less tax liabilites and penalites. I don’t know if this is still done, but it was an interesting day in law school when my corps professor Mr. Hull told us about it.

Crestcencia: My Ex husband claimed head of household on his taxes while we were separated, and I lived in another state. The IRS took my whole refund check, because I filed first. He got his, and all they told me was “sorry” not to mention after the divorce I found out about a credit card, and phone he took out and maxed, without my permission. Can I sue, even though its been three years/

Joe Escalante: Fraud will usually toll the statue of limitations governing how long is too long to wait to sue. So if you just found out about the fraud, you are OK. If you know there was a fraud, but didn’t know who did it, some courts would require you to sue a “john do” and later amend it when you find out who did it.
Regarding the IRS stuff, if he committed tax fraud, you’ve probably got some leverage against him to get him to behave in the future. But if that cost you money, you might want to sue him for it now and report him to the IRS. Ask him if he would like yoga lessons from Wesley Snipes. I heard they’re free to model prisoners.

Deanna: Hi Joe,
I am interested in setting up a dba. I have a bookkeeping business and would like to create a division of it using a different name. Is that a complicated process?
Thank you!

Joe Escalante: No. check with your tax person but it’s not that complicated. It’s not fun, but not that hard. Legalzoom can do it for you. My lady will give you the link. I have to go eat now. See you next week.

LegalZoom: Here’s the link to our DBA service: http://www.legalzoom.com/legal-dba/dba-doing-business-as-overview.html

James: Can I just copyright an idea? and I saw an earlier answer about copywriting a whole booklet of designs. Does the same theory apply to T-shirt “sayings”? (words on a t-shirt)

Joe Escalante: you have to call me radio show. Sunday night at 5 pm PST on KFWB AM 980 in L.A. call 888-KFWB-980 at 5 PM and we’ll put you right on the air. anyone else with intellectual property questions like this, that’s the best bet. thanks. I have to go now.

Get more info and all the details and fine print about Free Joe Fridays. And join us on Facebook 1/14 at 10am PT for more Free Joe!

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January 11th, 2011 at 7:17 am