Forbearance Registered User
#16

At a minimum, the Irish State is guilty (plain and simple) of illegal state aid to these vulture funds, I think Michael O' Flynn and others are taking legal action against the State in this regard. This court case will be watched closely by the US treasury and the SEC.

nuac Moderator
#17

Thanks for that summary, Forbearance

M_D_88 Registered User
#18

Great summary, in terms of the Mr English case has there been any further activity?

FreudianSlippers Registered User
#19

nuac said:
Thanks for that summary, Forbearance


Too bad it's complete claptrap from the first paragraph.

Granted, the poster can copypasta the timeline, but the rest is unmitigated bull**** with no basis in law.

Forbearance Registered User
#20

I am afraid, it is you who is excreting out of your facial orafice.

1. Aggressive tax avoidance in the USA is a federal crime.

2. Contact the IRS and ask them what a sham tax structure is.

3. Michael O Flynn and others are taking a case against The Irish State to Europe with regard to illegal state aid given by the Irish State to these vulture funds.

4. You need to read up on the law, Ireland has moved away from the common law tradition years ago ( although you may not have ). Believe it or not, this Country signed up to the Lisbon and Maastricht treaties, this allows European law to supercede contact and even Irish constitutional law, tell that to your friends in the bank.

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Pat Mustard Category Moderator
#21

Mod:

Forbearance,

Please post in a civil manner or do not post at all.

Please do not reply to this post.

FreudianSlippers Registered User
#22

Forbearance said:

1. Aggressive tax avoidance in the USA is a federal crime.

No, it is not. If it were, you'd cite the legislation - you can't and you won't.

"Aggressive tax avoidance" is lawful mitigation of taxes through multi-jurisdictional lawful methods.

Tax evasion is a Federal crime pursuant to 26 U.S. Code § 7201, where it is proved beyond a reasonable doubt that a "person willfully attempt[ed] in any manner to evade or defeat any tax imposed [by the IRS]".


2. Contact the IRS and ask them what a sham tax structure is.

There is no such thing; I think you mean a sham tax transaction.

Firstly, it's established case law since the 50s that intra-corporate sale of stock at loss is not evidence of a sham transaction in itself. I don't intend to delve into this, there are dozens of Supreme Court decisions on this.

The court determines two factors in deciding whether the transaction is a "sham":

(1) is there is a bona fide transaction of economic substance, based on or compelled by business or regulatory reason, considered together with tax-independent considerations;
(2) is the transaction itself shaped primarily by tax avoidance features.

See, for example, ACM Partnership v. Commissioner, 157 F.3d 231 (3d Cir. 1998) and again many others.

This is actually quite a steep hill to climb in large multi-national investment vehicles or IP owners.

3. Michael O Flynn and others are taking a case against The Irish State to Europe with regard to illegal state aid given by the Irish State to these vulture funds.

Cool story bro... but unless there is some other case, I believe the case to which you're referring has nothing to do with vulture funds but is actually do to with NAMA themselves commissioning the construction of housing, which O'Flynn and others claim causes a competitive disadvantage due to the lower cost of borrowing for the State-owned agency; thus resulting in lower prices for NAMA built homes and a competitive disadvantage for private builders.

I await your vulture fund case.

4. You need to read up on the law, Ireland has moved away from the common law tradition years ago ( although you may not have ).

That's simply not true - I highly doubt that's taught in Irish law schools these days...

Believe it or not, this Country signed up to the Lisbon and Maastricht treaties, this allows European law to supercede contact and even Irish constitutional law, tell that to your friends in the bank.

No, actually it doesn't. We have made Constitutional amendments to accede to those Treaties in order to allow the contents to be Constitutional. However, Directives are still implemented by National legislation in line with Constitutional requirements.

I suggest you (re-)read Van Gend en Loos as well to brush up on horizontal and vertical direct effect.


I truly hope you are not a practising lawyer in Ireland or the United States.

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SEPT 23 1989 Registered User
#23

Michael O' Flynn on the Sean O' Rourke show now

Forbearance Registered User
#24

In relation to aggressive tax avoidance being illegal in the USA I draw readers attention to a landmark well known US court case in this regard,


Gregory v. Helvering, 293 U.S. 465 (1935), was a landmark decision by the United States Supreme Court concerned with U.S. income tax law. The case is cited as part of the basis for two legal doctrines: the business purpose doctrine and the doctrine of substance over form. The business purpose doctrine is essentially that where a transaction has no substantial business purpose other than the avoidance or reduction of Federal tax, the tax law will not regard the transaction. The doctrine of substance over form is essentially that, for Federal tax purposes, a taxpayer is bound by the economic substance of a transaction where the economic substance varies from its legal form.
In other words if the said tax structure is a sham structure set up solely to reduce federal taxes and has no legitimate business purpose, it is illegal.

I believe Michael O'Flynn and others are fighting Nama and vulture funds. There are two separate legal actions taking place.

With regard to European legislation and in particular the unfair terms directive, 93/13/EEC refers. This is currently very topical in Ireland, some believe various County Registrars in the Circuit Courts of Ireland are granting possession orders without the legal discretion to apply EU law, in particular the unfair term directive, as in, a national court is required to assess of its own motion whether a contractual term falling within the scope of the directive is unfair, compensating in its own way for the imbalance which exists between the consumer or the seller or supplier.

In fact this is so serious I believe that the Tanaiste Francis Fitzgerald is asking questions of her own department and that of Justice and Revenue in this regard. The State may very well be liable if a consumer lost their abode in the matter as set out above.

In relation to readers of boards threads who are EU Law nerds, Freudian Slippers made reference to the Van Gend en Loos case which cautiously approached the subject of direct effect. Later in Defrenne v SABENA the ECJ decided their was two forms of direct effect, namely vertical direct effect and horizontal direct effect. In Foster v British Gas the ECJ demonstrated it's willingness to confer rights of a EU directive unto individuals. In Francovich v Italy the ECJ ruled that an action could be taken against a Government by an individual for the State's failure to implement a directive ( or it's incorrect implementation ) and the subsequent loss of rights suffered in court. If I was the Irish Government I would be worried, the EU has already penalised the Irish State for it's failure to correctly implement article 7(2) of the unfair terms directive, maybe the Irish State has not learnt from past mistakes. Think of all those consumers who may have been unlawfully dispossessed of their homes by Circuit Court registrars. It would only be natural for them to want their pound of flesh.

The Third Amendment of the Constitution of Ireland explicitly provided for the supremacy of EU law within the Republic of Ireland by providing that no other provision of the Irish constitution could invalidate laws enacted which was necessitated by membership of the then European Communities. In Crotty v. An Taoiseach the Irish Supreme Court held that the ratification of the Single European Act by Ireland was not necessitated by membership of the European Communities and could therefore be subject to review by the courts.

In relation to Freudian Slippers jibe about me being a practicing solicitor, all I can say is ditto, but the sad thing is, you probably are.

FreudianSlippers Registered User
#25

Forbearance said:
In relation to aggressive tax avoidance being illegal in the USA I draw readers attention to a landmark well known US court case in this regard,


Gregory v. Helvering, 293 U.S. 465 (1935), was a landmark decision by the United States Supreme Court concerned with U.S. income tax law. The case is cited as part of the basis for two legal doctrines: the business purpose doctrine and the doctrine of substance over form. The business purpose doctrine is essentially that where a transaction has no substantial business purpose other than the avoidance or reduction of Federal tax, the tax law will not regard the transaction. The doctrine of substance over form is essentially that, for Federal tax purposes, a taxpayer is bound by the economic substance of a transaction where the economic substance varies from its legal form.
In other words if the said tax structure is a sham structure set up solely to reduce federal taxes and has no legitimate business purpose, it is illegal.


Aw, bless. You can copypasta from Wikipedia.

https://en.wikipedia.org/wiki/Gregory_v._Helvering

lol.

Either way, you're still confused between tax avoidance and tax evasion.
I suggest you look at the two points I raised above in relation to sham transactions - you'll see that (and this is actually quite hilarious from someone who claims common law is dead) that it is a more modern case which builds on the basis of this near-century-old case.

This is no evidence that tax avoidance is illegal; this case and subsequent cases I quoted above are the basis for which a Court can determine a transaction a sham and therefore evasion (illegal) as opposed to avoidance (legal)


I believe Michael O'Flynn and others are fighting Nama and vulture funds. There are two separate legal actions taking place.

Source?

With regard to European legislation and in particular the unfair terms directive, 93/13/EEC refers. This is currently very topical in Ireland, some believe various County Registrars in the Circuit Courts of Ireland are granting possession orders without the legal discretion to apply EU law, in particular the unfair term directive, as in, a national court is required to assess of its own motion whether a contractual term falling within the scope of the directive is unfair, compensating in its own way for the imbalance which exists between the consumer or the seller or supplier.

I'm not sure how that makes your point in any coherent way?

In fact this is so serious I believe that the Taoiseach Francis Fitzgerald

Did Enda get the boot while I've been gone?

is asking questions of her own department and that of Justice and Revenue in this regard. The State may very well be liable if a consumer lost their abode in the matter as set out above.

Again, this doesn't provide a shred of support for the claim you initially made.

In relation to readers of boards threads who are EU Law nerds, Freudian Slippers made reference to the Van Gend en Loos case which cautiously approached the subject of direct effect. Later in Defrenne v SABENA the ECJ decided their was two forms of direct effect, namely vertical direct effect and horizontal direct effect. In Foster v British Gas the ECJ demonstrated it's willingness to confer rights of a EU directive unto individuals. In Francovich v Italy the ECJ ruled that an action could be taken against a Government by an individual for the State's failure to implement a directive ( or it's incorrect implementation ) and the subsequent loss of rights suffered in court. If I was the Irish Government I would be worried, the EU has already penalised the Irish State for it's failure to correctly implement article 7(2) of the unfair terms directive, maybe the Irish State has not learnt from past mistakes. Think of all those consumers who may have been unlawfully dispossessed of their homes by Circuit Court registrars. It would only be natural for them to want their pound of flesh.

Again, other than copypasta, this doesn't provide any coherent support for arguments you are making.

It shows you probably have just enough EU law knowledge to be dangerous to yourself and others, but not enough to actually reach a conclusion.

The Third Amendment of the Constitution of Ireland explicitly provided for the supremacy of EU law within the Republic of Ireland by providing that no other provision of the Irish constitution could invalidate laws enacted which was necessitated by membership of the then European Communities. In Crotty v. An Taoiseach the Irish Supreme Court held that the ratification of the Single European Act by Ireland was not necessitated by membership of the European Communities and could therefore be subject to review by the courts.

Again, whilst semi-factual information, it's just a dump... there is nothing here that in any way resembles a point...

In relation to Freudian Slippers jibe about me being a practicing solicitor, all I can say is ditto, but the sad thing is, you probably are.

Well, it's "practising" first of all; I didn't say anything about being a solicitor and I do practise law in both jurisdictions.

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M_D_88 Registered User
#26

I think we are moving off the tread title, back to the very first question, In December 14 Ulster bank claimed to assign their Loan to Promontoria Aran Ltd, but it transpires it auctually was assigned to Promontoria 128b.v. Is this false information on Ulster banks part. How legal are the transfers, as there isn't even a mention of Prom 128 on a land registry Folio.

Forbearance Registered User
#27

Totally agree, I have viewed the letters in question and it does seem that Ulster Bank are quilty of misrepresentation to say the least, one has to ask the question why?. Time will tell if the transfers are legal or that those who signed same are duly authorised. Like to see the PRA form 56 used to transfer the charge !

Forbearance Registered User
#28

To posters, regarding my recent argument with Freudian Slippers, particularly with regard to EU law trumping all other law, here is another cut and paste from a recent High Court case AIB Plc v. Peter and Mary Counihan, delivered by Justice Max Barret that will put this argument to bed once and for all (para 14 refers )


14. Fifth, of some concern when it comes to the application of Aziz is how the task identified by the Court of Justice falls to be discharged in a common law system grounded upon, inter alia, the rules of precedent. If, for example, the court at summary hearing reviews particular terms and conditions and identifies clauses A, B, and C as potentially unfair, is a later court of equal or lesser jurisdiction precluded from finding that clauses X, Y and Z in the same terms and conditions present a difficulty in this regard? It seems to this Court that they could reasonably be contended not to be so bound because (a) each case will be decided to a great extent on its own facts, and/or (b) ultimately even the demands of precedent must yield to the supremacy of European Union law, where applicable, and/or (c) because of the precedential weight to be ascribed a judgment following summary hearing, as opposed to a judgment given after full plenary hearing.

FreudianSlippers Registered User
#29

Forbearance said:
To posters, regarding my recent argument with Freudian Slippers, particularly with regard to EU law triumphing all other law, here is another cut and paste from a recent High Court case AIB Plc v. Peter and Mary Counihan, delivered by Justice Max Barret that will put this argument to bed once and for all (para 14 refers )


14. Fifth, of some concern when it comes to the application of Aziz is how the task identified by the Court of Justice falls to be discharged in a common law system grounded upon, inter alia, the rules of precedent. If, for example, the court at summary hearing reviews particular terms and conditions and identifies clauses A, B, and C as potentially unfair, is a later court of equal or lesser jurisdiction precluded from finding that clauses X, Y and Z in the same terms and conditions present a difficulty in this regard? It seems to this Court that they could reasonably be contended not to be so bound because (a) each case will be decided to a great extent on its own facts, and/or (b) ultimately even the demands of precedent must yield to the supremacy of European Union law, where applicable, and/or (c) because of the precedential weight to be ascribed a judgment following summary hearing, as opposed to a judgment given after full plenary hearing.

I think I understand why you're a little confused:

There is a difference between what you seem to be describing (and it's certainly not in any way a basis to claim "common law is dead") and what the reality of primacy of EU law means on a practical basis.

The EU has a bunch of Treaties which outline the basic tenants of EU law - they're not entirely prescriptive, but more of the foundation of EU law. These are essentially the EU Constitution (which is why people wanted to replace the multiple Treaties with one single European Constitution). It is correct that Member States cannot enact legislation which is contrary to these Treaties; so in that manner, to use your rather odd phrasing, EU law "triumph" over Member State laws.

Because Treaties by their very nature cannot be entirely prescriptive, the EU (as with the Member States themselves) relies on secondary legislation to kind of fill in the blanks. Regulations, Directives and Decisions are the ways by which this is done. Regulations have direct effect, so I'd also agree that they "triumph" over MS law. Directives do not have direct effect (well... we now know that's only kind of true, but that's perhaps a digression) and must be implemented into national legislation in line with the constitution.


So in short, what you're doing is a key tactic of the pseudo-legal world, whereby you take something and misrepresent it as being applicable in non-analogous situations. It's akin to a modern charlatan IMO.

FreudianSlippers Registered User
#30

Forbearance said:
Totally agree, I have viewed the letters in question and it does seem that Ulster Bank are quilty of misrepresentation to say the least, one has to ask the question why?

How so? That's a serious accusation.

Time will tell if the transfers are legal

How do you claim that the transfers are not legal?

or that those who signed same are duly authorised.

What do you mean; from whom is authority granted?

Like to see the PRA form 56 used to transfer the charge !

I'm not hugely versed on the specifics on conveyancing, but if the deed was novated, why would a new form 56 be required on the mortgage given it's not technically a transfer?

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