VA Secretary to speak at Harvard Law School on Nov. 2nd

Dr. David Shulkin, Secretary of the U.S. Department of Veterans Affairs, will deliver the 2017 Disabled American Veterans (DAV) Distinguished Lecture at Harvard Law School next month. This is the fourth annual event in the DAV Distinguished Speaker Series. The Speaker Series provides a forum for national leaders to address the critical issues facing our nation’s disabled veterans and to engage in conversation with the local community. The series is co-hosted by the Veterans Legal Clinic at the Legal Services Center of Harvard Law School and the Harvard Law School Armed Forces Association.

The event will be held on Thursday, November 2nd, 2017, at 12pm, in Milstein West A on the second floor of Wasserstein Hall on the Harvard Law School campus. The street address for Wasserstein Hall is 1585 Massachusetts Avenue in Cambridge. The event is open to the public.

 

Helping Low-Income Clients Navigate the IRS

Professor Keith Fogg, right, who heads the Tax Clinic, with Fellow Audrey Patten

Tax Clinic students and faculty fight for clients’ rights, file potentially precedent-setting appeals.

The client worked at a minimum wage retail job earning $13,000 a year and was the family’s sole breadwinner. Because she and her aging mother had agreed to foster a relative’s child whose parents had been incarcerated, she filed a federal tax return claiming the earned income tax credit and advanced child tax credit, both of which are designed to benefit low-income households.

Then an IRS audit ruled her ineligible for those benefits – which would have brought an additional $5,000 into the household – saying the child’s foster care status did not qualify her as a dependent for purposes of these credits. But thanks to tenacious legal research and petition-filing by a Harvard Law School student working in the Tax Clinic of the Legal Services Center at HLS, the IRS ruling was overturned and the client received much needed additional income.

Leveling the playing field

Low-income clients come to Harvard’s Tax Clinic because they need an advocate to fight for their legal rights – rights that are meaningless if clients lack access to a lawyer to stand up for them.

Tax debt and the liens which the IRS files can prevent clients from getting jobs, while fixing tax problems allows them to reenter the job market and has a positive impact on their credit ratings.

Tax Clinic clients are military veterans, immigrants, or survivors of domestic violence. They find themselves under audit or in Tax Court because they have been victimized by scoundrel fly-by-night tax preparers who submit faulty returns on their behalf. Or they have survived abusive domestic relationships only to discover that spouses kept them in the dark about nefarious, unreported financial dealings that have potentially devastating tax consequences. Still others are vets who fail to file tax returns after losing jobs or businesses because they suffer from service-related post-traumatic stress disorder.

Others who wind up at the Tax Clinic have been wrongly incarcerated and are now receiving monetary settlements for their pain and suffering. Or they were exploited by for-profit schools and colleges and are now having their government student loans forgiven. Helping these individuals avoid unintended tax consequences of these settlements is another goal of the Tax Clinic.

In the earned income tax credit case, dogged research by law student Jimin He, HLS ’17, determined that the client had, in fact, done everything right — but the IRS auditors reviewing her case were apparently unaware of the temporary regulations recognizing foster siblings.  Gathering the necessary documentation to prove guardianship and to show eligibility to claim the foster sister as a dependent, Jimin He prepared and filed the petition. The IRS conceded almost immediately, releasing to the client a much-needed check for $5,000 that had been previously frozen.

A new effort to set precedent

The Tax Clinic is led by Keith Fogg, who came to Harvard in 2015 as a visiting professor from Villanova to serve as founding director. He has recently been appointed Clinical Professor of Law at HLS to lead the growing tax clinic enterprise on a permanent basis.

Professor Fogg is a national authority on tax procedure, especially in the area of collection and bankruptcy law as it relates to tax. He worked for 30 years in the Office of the Chief Counsel of the Internal Revenue Service. The recipient of numerous honors, he was chosen as the IRS Chief Counsel Robert H. Jackson National Attorney of the Year in 2007 and the ABA Tax Section Janet R. Spragens Pro Bono Award winner in 2015. He co-authors a blog with Villanova Professor Leslie Book, procedurallytaxing.com, which focuses on current tax procedure issues and is an exceptionally popular ABA Top 100 Law Blog.  He is also the editor of Effectively Representing Your Client before the IRS, which is published by the ABA and is the tax practitioner’s bible for IRS advocacy.

Professor Fogg’s goal is not only to offer the help of Harvard Law students to dozens of low-income clients with tax matters each year under supervision by LSC lawyers. Equally important, he wants to establish precedents that make tax laws and processes more favorable to low-income clients. In fact, Harvard’s is perhaps the only tax clinic among the 40 US law schools with such clinics that systematically sets out to use the courts and administrative processes to create new precedents that will benefit low income taxpayers nationwide.  In the past year alone, the Clinic has been to Circuit Courts of Appeal twice arguing cases that it hopes will set new precedent about the rights of taxpayers.

“Keith is at the vanguard of the low-income tax movement,” says Caleb Smith, who was a Clinical Fellow in the Tax Clinic during the 2016-2017 academic year and now leads the Tax Clinic at the University of Minnesota Law School.  “He thinks not only about how to solve individual tax problems, but he focuses on bigger systemic issues.  He thinks broadly and creatively about how to advocate for low-income clients by advocating for bigger rule changes, whether it be by filing amicus briefs, commenting on administrative rules changes, or taking unfair decisions in Tax Court to the appellate courts.”

“While tax law represents a substantial and critical part of the Law School curriculum, before the Tax Clinic was established there was no clinic through which students could receive hands-on legal training in the actual practice of tax law,” says Daniel Nagin, Clinical Professor of Law, Vice Dean for Experiential and clinical Education, and Faculty Director of the WilmerHale Legal Services Center (LSC) at Harvard Law School. “It’s exciting that we can pursue these important teaching goals, respond to the unmet legal needs of vulnerable communities — and potentially set legal precedents that will benefit large numbers of low-income clients,” he says.

Students experience IRS negotiations, appellate court work

 Many of the students who enroll in the Clinic have a deep interest in tax law.  Others are not committed to a tax law career but are curious about a topic so central to the social safety net and have an interest in exploring public service law careers.  Still others are motivated by a desire to deepen their understanding of administrative law practice and/or hone their appellate advocacy skills.

“I have one student who is a young associate at a well-respected law firm, and it turns out she is the only one on the team she is working with who has ever negotiated with the IRS, an experience she gained in the Clinic,” says Professor Fogg.  “And so, at a very early stage in her career, she has become the lead person in at least one case because she has more expertise than her more senior colleagues in dealing directly with the IRS.”

In the last six months, students have appealed Tax Court decisions on behalf of low-income clients in the Fourth and Tenth Circuit Courts, in addition to arguing cases before the Second and Third Circuits. The appellate cases are focused on developing jurisprudence on equitable tolling in tax law, an historically neglected area that can allow low income taxpayers who have been misled by the IRS to have their day in court. The Clinic has also filed amicus briefs on this topic in the Tax Court and in the Ninth Circuit.

In each of these potentially precedent-setting cases, the Clinic’s student lawyers argued that the IRS misled their clients concerning the date by which they could file an appeal of a Tax Court ruling in an innocent spouse or collection due process case.  The individuals with whom the Tax Clinic is now working clearly filed responses before the dates the IRS had told them verbally or in writing the responses were due – but because the IRS employees miscalculated the correct date or provided misleading communication, the taxpayers responses arrived beyond the timely filing window.

In their appeals, Tax Clinic attorneys and students argue that the statute of limitations should not bar the client’s claim in these cases. Each of the clients the Tax Clinic represents in these cases has a compelling reason for missing the deadline for filing and a good underlying case. In making the tolling argument, the Tax Clinic raises issues of equity and fairness.  The Tax Clinic interprets recent Supreme Court decisions regarding the time frame to petition courts as giving the Tax Court the authority to allow late claims in appropriate cases.

Even if the Tax Clinic ultimately loses on the merits of these cases, the compelling nature of the issue and of the cases presented should provide a strong basis for seeking legislation to allow the Tax Court’s doors to be opened when a petitioner files late for a valid reason, Fogg says.

Fighting tax code trip wires

Bryan Camp, George H. Mahon Professor of Law at Texas Tech Law School and an expert in tax and bankruptcy law, writes extensively in Tax Notes and other major tax publications about the kinds of issues Fogg and the Tax Clinic seek to address.  “The Tax Code is full of trip wires that prevent people from getting the relief they deserve, he says.  “Keith’s work and the work of Harvard’s Tax Clinic is doing God’s work to convince courts to cut people a break.”

For students, the opportunity to prepare cases at an appellate level is almost unheard of in many law schools. Jeff Zink, HLS 2017, had the unusual opportunity to provide oral argument before a federal court of appeals as a third-year law student this past spring in one Tax Clinic case.  “Most lawyers don’t get to do that until after many years of practice,” he says.

Zink answered questions from a three-judge panel, and opposing counsel was an experienced government tax attorney.  “It was nerve-wracking,” he admits.  “But it was an incredible learning opportunity.  Preparing for oral argument is a challenging and unique process.  Having gone through it once already will help me throughout my career.” Zink is now clerking for the First Circuit Court of Appeals in Boston. He plans to pursue a career in tax.

While appellate judges have ruled against the Tax Clinic’s clients in the Second and Third Circuit Courts on equitable tolling issue, the Tax Clinic is marching forward to present the issue in other circuits. Fogg hopes one of the remaining circuits will rule favorably given the strength of the cases and legal arguments. And if a circuit does decide favorably, it would be a precedent-setting ruling that would benefit many low-income taxpayers in the future.

Giving clients a voice

In addition to direct client work and the appellate work, the Tax Clinic has also submitted amicus briefs in cases involving areas such as innocent spouse issues and refund jurisdictions. It has also filed comments to the IRS on proposed rule changes that affect low-income taxpayers, such as those that relate to Tax Court rules and the Earned Income Tax Credit, the latter of which, in many ways, is the federal government’s largest anti-poverty program.

“Low-income taxpayers generally lack a voice in rulemaking that impacts their lives,” says Fogg.  “And so, whether we are working on behalf of individual clients, filing potentially precedent setting appeals, or commenting on IRS rulemaking, our ultimate goal in the Tax Clinic is to make sure that low-income taxpayers have their voices heard.”

Project on Predatory Student Lending Invites Secretary DeVos to Meet with Former For-Profit College Students

Betsy DeVos, Secretary of the U.S. Department of Education, will be speaking at Harvard University’s Kennedy School this Thursday, September 28th. In a letter to the Secretary, the Project on Predatory Student Lending has requested the Secretary meet with former students who have been harmed by the deceptive practices of for-profit colleges. The letter notes that “as the head of the Department of Education,” DeVos has “the legal authority to cancel the student debt that these borrowers face as a result of the fraudulent behavior of these predatory colleges.” Under DeVos’s leadership, the Department of Education delayed new borrower defense rules scheduled to take place July 1, 2017. These rules would have protected borrowers from deceptive practices in higher education, while making it more difficult for predatory schools to take advantage of students by, as one example, prohibiting the use of forced arbitration clauses that block students’ ability to sue their school in court.

DeVos has justified rolling back these protections by claiming, “Under the previous rules, all one had to do was raise his or her hands to be entitled to so-called free money.” This statement is a gross mischaracterization of borrower defense, and is completely out of touch with the reality facing students who have been targeted and ripped off by the predatory for-profit industry. Students face tremendous barriers in getting the Department to recognize their legal entitlement to loan cancellation. For example, Project client Sarah Dieffenbacher has petitioned the Department at least four times for borrower defense. Rather than cancel her loans, the Department used coercive measure to collect on them, including attempts at wage garnishment. Ms. Dieffenbacher, a single mother who was falsely told by Everest College that its paralegal program was accredited by the ABA and that she could transfer her credits towards a law degree, is in jeopardy of losing her car and her apartment because of the Department’s actions. Since DeVos assumed the position of Secretary of Education, The Department of Education has not acknowledged a single borrower defense application, ignoring its legal responsibility to cancel student loan debt for students who were defrauded by the illegal and deceptive practices of for-profit colleges.

Borrowers are seeking recognition of their rights, not “free money.” In fact, the only “free money” at issue is the taxpayer money that flows into the coffers of predatory for-profit colleges. As the Project on Predatory Student Lending’s letter to DeVos states, “for-profit colleges are the most tax-subsidized of any private industry. More than $30 billion in taxpayer money goes to this industry each year in the form of federal student loans.” Billions of taxpayer dollars are funneled into fraudulent corporate profit while DeVos is doing nothing to prevent this abuse.

The Project on Predatory Student Lending asks that DeVos make time to meet with former students of for-profit colleges. After hearing firsthand about the tremendous harm caused by the for-profit college industry, the Project hopes that DeVos will re-think her policies to favor students and taxpayers, not corporate profits. The Boston Globe covered the request here.

Successfully Protecting Housing Rights of Sexual Assault and Domestic Abuse Survivors

Attorneys and students in LSC’s Housing Justice for Survivors Project are working on multiple fronts to protect the rights of survivors of sexual assault and physically abusive relationships to ensure that they have safe, affordable housing. Sometimes that means helping tenants break a lease to relocate quickly. In other cases, it means fighting to help them hold onto an apartment the survivor formerly shared with an abuser.

Their efforts are leading to favorable rulings in the courts and greater understanding of state laws that protect survivors from being re-victimized.

Most recently, their work filing an amicus brief in one case has helped lead to a major court ruling in the Supreme Judicial Court of Massachusetts. That ruling ensures that even if a survivor’s name is not on a lease, even if she/he is labelled an “unauthorized occupant” by the landlord, or even if she/he is accused of fraud for living in the apartment without being on the lease, she/he still may have a valid claim to the apartment and that claim should be heard at trial.

Getting out of a lease to leave an unsafe home

Survivors of sexual assault, domestic violence, or stalking often have to leave their homes with little notice or planning in order to avoid harm by a perpetrator who knows where they live.  Clients of LSC have had to leave their homes because their perpetrator lived upstairs, because they were getting ready to file criminal charges and feared retribution, because their abuser threatened their safety in and around their homes, or because their rapist worked around the corner from where they live.

One of the most pressing question clients ask when they reach out for help in these impossible situations is “What will happen if I have to break my lease?” Many fear financial penalties from the landlord, or simply believe that they will not be able to leave until the end of the contract.

Fortunately, G.L. c. 186, § 24, “Termination of rental agreement or tenancy by victim of domestic violence, rape, sexual assault or stalking” (“Section 24”), was signed into law in Massachusetts in 2013, after decades of law-reform efforts by survivors and housing advocates. Its purpose is to help survivors leave their homes for safety reasons without incurring financial penalties.

The Housing Justice for Survivors Project has represented many tenants in these situations, allowing them to relocate quickly to safer homes and a fresh start. However, Section 24 is not well known or understood, and so survivors across the Commonwealth who do not have lawyers remain trapped in unsafe living situations and unable to break free from abuse for fear of financial liability.

To familiarize legal practitioners, landlords, and tenants with the provisions of Section 24 so that its benefits may be more broadly utilized, LSC attorney Julia Devanthéry recently published an article in the Boston Bar Journal on the topic.

Fighting evictions so that survivors can stay in their homes

Another common housing crisis that survivors face is the risk of loss of housing as a result of abuse. Sometimes survivors are evicted for reasons directly related to the violence (such as damage to the apartment or disturbance of neighbors). Sometimes the eviction is a downstream effect of abuse or standing up to abuse (for example, when a survivor finally separates from an abuser and suddenly doesn’t have enough income to pay the rent each month, or the survivor is not on a lease for the shared apartment and kicking out an abuser exposes the remaining family members to loss of housing).

Unsafe housing and housing instability re-victimizes survivors, causing homelessness and tremendous loss to survivors and their families.  LSC’s Housing Justice for Survivors Project is standing with survivors to help make sure that their rights are protected by representing them in evictions and negotiations with landlords.

The Housing Justice for Survivors Project submitted an amicus brief to the Supreme Judicial Court representing two leading domestic violence and sexual assault agencies, Jane Doe Inc. and Casa Myrna, in support of a tenant who was trying to protect her home after she got her abuser removed through a restraining order. Her abusive husband had repeatedly prevented her from taking the steps necessary to be added to the lease, and when he was removed from the home after she finally was able to get an abuse prevention order, the landlord moved to evict her and her children because her name was not on the lease.

In a major victory for survivors across the state and beyond, the Supreme Judicial Court in mid-September published its decision in favor of the survivor tenant in Beacon Residential v. R.P. The Court ruled that survivors of domestic violence should be allowed to intervene in eviction cases as of right (on behalf of themselves or their minor children) when they have claimed an interest in the apartment under the Violence Against Women Act (VAWA) or a corresponding state law.

The Court said that even if the survivor is not on the lease, is labelled an “unauthorized occupant” by the landlord, and/or is accused of fraud for living in the apartment without being on the lease, she still might have a valid claim to the apartment  and that claim should be heard at trial.

Devanthéry and three Housing Justice for Survivors students (Nino Monea, Tara Knoll and Michael Zhang) wrote the amicus brief , and worked closely with lawyers from Nutter McClennen & Fish who took the case pro bono through the Volunteer Lawyer’s Project’s Civil Appeals Clinic.  Other tenant rights experts in Boston and across the country also worked on the case, including the National Consumer Law Center, Greater Boston Legal Services, the Women’s Bar Association, and the National Housing Law Project in San Francisco.

Together the team presented a cohesive and passionate defense for survivors at risk of losing their homes and convinced the Court that the voices of survivors should be heard in eviction proceedings in order to prevent unjust loss of housing.

“It was truly a community push,” says Devanthéry, “and it couldn’t be a better outcome for survivors across the Commonwealth and beyond. ”

AP Story Quotes LSC Attorney on Delay in Cancelling Predatory For-Profit College Loans

Tens of thousands of former students who say they were swindled by for-profit colleges are being left in limbo as the Trump administration delays action on requests for loan forgiveness, according to court documents obtained by The Associated Press. The Education Department is sitting on more than 65,000 unapproved claims as it rewrites Obama-era rules that sought to better protect students.

Alec Harris, a lawyer with Legal Services Center of Harvard Law School who is representing one such student – Sarah Dieffenbacher a single mother of four who owes $50,000 in student loans —  said the inaction could put his client and her children on the street. “This is a Department of Education that has seemingly sided with industry and stacked the deck against former students of predatory for-profit schools every step of the way,” Harris said.

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LSC Reaches Out to Homeless and At-Risk Vets at Stand Down 2017

A team of lawyers from LSC’s Veterans Clinic joined staff and volunteer lawyers from Veterans Legal Services  to offer legal advice at  the 2017 Greater Boston Stand Down on September 8 at City Hall Plaza. More than 100 Veterans who are homeless or at-risk of homelessness came to the legal services tent as part of the day’s events.

Stand Downs take place across the country and bring together community providers and Veterans in one place to make it easier for Veterans who are homeless or at risk of becoming homeless to access services such as employment assistance, housing assistance, medical care, wellness programs, legal support, and prevention services.

Members of the Veterans Clinic at LSC with volunteers from Veterans Legal Services as well as the MA Department of Veterans Affairs Secretary Francisco Urena

The event in Boston was organized by the New England Center and Home for Veterans.

LSC has participated in the Greater Boston Stand Down for several years, and a number of veterans who attend the event each year ultimately become LSC clients to receive in-depth legal representation on issues such as VA and disability benefits, SNAP and other public benefits, tax controversies, or issues concerning housing law, family law, estate planning, and consumer law.

LSC Alum Leading the Way for People with Disabilities

Haben Girma, a Harvard Law School alum and alum of LSC’s Disability Litigation Unit (now the Safety Net Project) , is featured on the cover of the September issue of the American Bar Association Journal for her consulting and public speaking work encouraging companies to hire people with disabilities and to develop fully accessible products and services. Girma has worked with organizations ranging from Apple and Google to Pearson Education and the American Alliance of Museums.

Before going into consulting, this former Skadden, Arps, Slate, Meagher & Flom fellow practiced litigation for more than two years with the nonprofit organization Disability Rights Advocates.

Girma is a first-generation immigrant who has both limited hearing and vision and refers to herself as “Deafblind.” She was named one of the ABA Journal’s Legal Rebels.

Learn more

Moving Day in Boston: What Are Tenants’ Rights?

 

Renters moving out of one place and signing a lease on a new one need to know their rights as tenants. One way to do that is to check out the newly updated book Legal Tactics: Private Housing, an easy-to-understand, comprehensive handbook on Massachusetts tenants’ rights for lay audiences.

The book focuses on private rental housing and answers questions on everything from security deposits and last month’s rent to rent and utilities, repairs, evictions, housing discrimination, lead poisoning, mobile homes, and tenants in foreclosed properties.

It is available for free online or you can purchase a hard copy online or by calling   Massachusetts Continuing Legal Education at 1-800-966-6253 .

Julia Devanthery

More than forty sample forms, letters, and checklists provide tenants and their advocates with the tools needed to prevent problems, gain protections, and communicate effectively with landlords, boards of health, and courts. A one-stop reference, this book also provides the legal information tenants need through footnotes, an expanded phone directory, and actual text of key laws.

“This book empowers unrepresented people and arms non-lawyer advocates as they take on powerful opponents and navigate a challenging legal system,” says Julia Devanthery, one of the lawyers at LSC who represents low income clients on housing issues.

Maureen McDonagh

“Until there is a civil right to counsel, tenants will have to represent themselves in landlord-tenant matters in Massachusetts,” adds Maureen McDonagh, who leads the Housing Clinic at LSC. The Harvard clinic is a community lawyering office in Jamaica Plain/Roxbury that focuses on representing low-income tenants who cannot afford counsel, including providing Attorney of the Day services in Boston Housing Court.  The Clinic has special expertise working on issues at the intersection of domestic violence and housing.

“Legal Tactics is essential reading for any tenant,” says McDonagh, “and especially for those fighting to stand up for their rights.”

 

Here’s just a few of the many types of questions renters may have that the book addresses, and links to find the answers online:

I’m moving into a new place and had planned to use my deposit from my old place to put down on my new place.  But my old landlord is being slow in giving me my deposit back – and she says that the apartment is in worse shape than when I moved in six years ago, so she plans to keep part of the deposit to cover the cost of repainting and cleaning?  Is this fair?  (Chapter 3)

I have a pet, and my landlord says he will rent the apartment to me, but he is asking that I put down a first and last month’s rent, security deposit equal to one month’s rent, plus a “pet fee.” Is that OK?  (Chapter 3)

Can my landlord evict me with no notice for non-payment of rent?  (Chapter 12)

Can my landlord evict me with no notice for any other reason?  (Chapter 12)

I really like the new place I’ve just found and can afford the rent.  But the neighborhood is gentrifying, and other apartments in the area are being converted to condos. If my landlord decides to convert my apartment into condos down the road, how much advance notice must he provide me?  (Chapter 17)

When can I sublet my own apartment to someone else?  What are my legal rights if, unbeknownst to me, I sublet an apartment that the original renter was not allowed to sublet and the landlord finds out?  (Chapter 11)

Edited by Annette R. Duke of the Massachusetts Law Reform Institute, Boston,  authors of individual chapters include two members of the Legal Services Center at Harvard Law School, Julia E. Devanthery, and Maureen E. McDonagh, who have written chapters on evictions and security deposit law, including information on how victims of domestic violence, sexual assault, or sexual harassment have the right to break their leases following these incidents.

Other authors includes lawyers from Greater Boston Legal Services; Cambridge and Somerville Legal Services; National Consumer Law Center;  the Community Legal Aid organizations in Springfield, Worcester, Pittsfield, and Lowell; Northeast Legal Aid; the Volunteer Lawyers Project of the Boston Bar Association; Harvard Legal Aid Bureau, and  law firms including Goldstein & Feuer, Moquin & Daley, and Gary Allen, Esq.