Can You Get SSI for a Fibromyalgia Diagnosis?

Have you been diagnosed with Fibromyalgia and unable to work owing to the severity of your condition? If so, you may be wondering if you can get SSI for Fibromyalgia.

Before applying for SSD benefits, you should be aware of how the Social Security Administration views Fibromyalgia. The SSA requires rigorous evidence that you will need to provide to be considered disabled under the administration’s guidelines. It may be helpful to have an SSDI attorney available to support your claim.

Can I get Social Security Disability Benefits for Fibromyalgia?

First, let’s start with a breakdown of Fibromyalgia, its symptoms, and how covid can impact its severity.

According to the Social Security Administration (SSA), Fibromyalgia (FM) is a complex medical condition characterized by widespread pain in the joints, muscles, tendons, or nearby soft tissues that persists for at least three months. In addition to chronic pain, Fibromyalgia presents other conditions like difficulty sleeping, memory, and cognitive problems otherwise known as “fibro fog,” chronic fatigue, depression, recurring migraine headaches, irritable bowel problems, muscle fatigue causing twitching and spasms, and temperature sensitivity.

For those who have Fibromyalgia, COVID-19 may have a significant impact on their health. The effects of COVID-19 on our everyday life have increased stress, depression, reduced physical activity, and weight gain for many people. While these changes are not unwanted for anyone’s health, they are particularly concerning for those with Fibromyalgia as they can result in painful and debilitating flare-ups of their condition.

What do I need to know before I apply for SSI benefits?

  • Establish diagnosis and treatment. First, you must establish the diagnosis and treatment for Fibromyalgia by a medical or osteopathic doctor. The Social Security Administration (SSA) will review the doctor’s treatment notes, findings on physical examination, and the diagnostic studies. Then, the SSA will evaluate whether the doctor’s records are consistent with a diagnosis of Fibromyalgia and whether your reported symptoms over time have been severe enough under the Social Security Administration’s requirements to find you disabled.
  • A Rheumatologist is vital. Social Security Administration evaluates Fibromyalgia through the criteria established by the American College of Rheumatology. If you have been diagnosed with Fibromyalgia by a physician and not a rheumatologist, documentation may be insufficient to meet the requirements the SSA uses to evaluate claims.
  • Evidence. There are three critical pieces of evidence that the Social Security Administration will look for in your medical records to establish the diagnosis of Fibromyalgia. An SSDI attorney can help support you during the process.
  1. Your Records. Records must establish that you have had widespread pain that has persisted for at least three months. Widespread pain involves pain on both sides of the body and in both upper and lower halves of the body.
  2. Tender points. There are 18 tender points identified on the body and addressed in evaluating Fibromyalgia. Of the 18 tender points, you must have pain in at least 11 of them. If your doctor is not documenting delicate point testing, meeting this criterion will be difficult.
  3. Ruling out other diagnoses. There must be documented evidence ruling out other disorders likely to cause the same symptoms.

Symptoms. Considering the severity of Fibromyalgia, the Social Security Administration looks for evidence of having repeated manifestations of six or more fibromyalgia symptoms or co-occurring conditions such as fatigue, cognitive or memory problems (“fibro fog”), waking unrefreshed, depression, anxiety, and irritable bowel syndrome.

Is it challenging to get SSD benefits if you have Fibromyalgia?

Obtaining Social Security benefits based on a fibromyalgia diagnosis can be extremely difficult for several reasons. First and foremost, diagnosis typically occurs between the ages of 35 to 45. At that age, the Social Security Administration considers you to be a younger individual and presumes that you are not disabled based upon their regulatory guidelines. Fibromyalgia diagnosis relies on a combination of subjective symptoms which cannot quickly be established and are not always well documented. The SSA relies heavily on medical records when making disability determinations. If the medical records do not substantiate your complaints, the SSA will most likely disapprove the claim.

Should I Work with an SSDI Attorney?

While you are not required to utilize the services of an SSDI attorney during the benefits application process, it is crucial to put your best case forward from the very beginning. If Fibromyalgia is your primary disabling condition, you should consider consulting with an experienced SSDI attorney near you before entering your claim. If you are denied benefits at the initial stage, it then takes a significant time to get a hearing date before an Administrative Law Judge (ALJ), with some offices reporting a wait of 18-months.

Talk to the attorneys at our law offices in Doylestown for advice. They’ll make sure you the best advantage of winning your claim.

Elizabeth C. Early appointed as Hearing Committee Member Serving the Disciplinary Board of the Supreme Court of Pennsylvania

High Swartz Law Firm of Southeastern PA and New Jersey is pleased to announce the appointment of Elizabeth C. Early as a Hearing Committee member in the District II disciplinary district. Ms. Early is a family Law Attorney, parenting coordinator and partner at the firm’s Norristown office. Ms. Early’s appointment will begin on July 1, 2021.

As a Hearing Committee member, Liz will conduct hearings and review cases to determine a particular course of discipline. While the Disciplinary board consist of 10 attorneys and 2 non-attorneys, the Hearing Committee is comprised of 150 members who may dedicate their time for up to six years.

“I am honored to be appointed to this position as I believe our first and most important obligation as attorneys is to uphold our Rules of Professional Conduct. I look forward to serving the aims of the Disciplinary Board and giving back to my community and peers in this important role.” Says Ms. Early.

A Brief Explanation of the Discipline Process

The discipline process in Pennsylvania consists of many moving parts. It begins with the Office of Disciplinary Counsel (ODC) receiving a complaint. A request for more information and documentation is made and of course, notification of the Complainant of case disposition.

At this point the ODC prepares a Petition for Discipline which acknowledges charges. The matter is then assigned to a 3-member Hearing Committee. The ODC presents evidence of the misconduct and the Respondent present their defense. After the possible filing of a brief by the ODC And Respondent, the Hearing Committee issues its Report and Recommendation which includes the recommended disposition, or punishment. The process can be concluded by dismissal, private or public reprimand, or even an informal admonition.

The Emerald Ash Borer Killed a Tree on My Property Line. Who is Responsible For Its Removal?

The Emerald Ash Borer insect has wreaked havoc throughout much of PA and is migrating to surrounding Mid-Atlantic states. Dead ash tree removal is a must for property owners, but the responsibility burden can sometimes cause friction between neighbors.

I live in Southeastern Pennsylvania, and I’m trying to resolve a dispute with a neighbor about a dead ash tree that sits directly on our property line. When I moved into my house a few months ago, I had an arborist inspect the tree, and planned to have it trimmed.

I was advised that the ash tree is infected by the emerald ash borer beetle and is nearly completely dead. The arborist advised me to remove it quickly so that it does not fall on my shed directly under it and was given a quote of $1700.The thing is, the tree sits approximately on 25% of my property and 75% of my neighbor’s.

My understanding is that in PA, if a dead or dying tree sits on the property line, both the neighborly and legally required thing to do is to split the cost of removal. However, my neighbor stated that he did not care if it came down in my yard as it would be my responsibility to remove it if that occurred. The dead tree would not hit his house if it fell on his property, and he was not willing to contribute to its removal.

I was hoping to determine with a real estate lawyer familiar with tree removal laws if I had any legal recourse against him with regards to this removal. Or,f the cost of removal is low enough that I am better off just paying for the tree removal myself rather than trying to take legal action against my neighbor At the end of the day, I’m arguing with him over $850 and the principle of the matter. – Matthew P.

I believe your understanding of the PA tree law is correct. A property line tree is the joint and equal responsibility of the two property owners. If one party refuses to accept equal responsibility, legal action would have to be started – normally before a Montgomery County magistrate judge. The cost of commencing the action is not great, but, the cost of your relationship with your neighbor could be.

You might have some success in having a real estate attorney write to the neighbor, but that could be costly as well. The additional issue is that in order to remove the tree, your arborist may requires the neighbor’s permission, since going onto his property would be a trespass.

For you to be successful, legally you have to be able to prove where the property line is and prove that the tree was a hazard tree because it was dead. You’ll need a written opinion from the arborists and good pictures.

Many arborists in PA are rightfully reluctant to climb up an ash tree in order to remove it because it dies from the top down – so the top becomes very brittle and thus dangerous to climb. You have to deal with this right away. Best of luck!

Our Firm Administrator Reunited with Her Twin Sister After Being Separated at Birth

Emily Bushnell of Ardmore, PA got the unexpected news of a lifetime on March 3, 2021. She had discovered that she had a long-lost identical twin sister living in Florida, after opening an unexpected email. The “new” family met in Fort Lauderdale for the first time after finding each other through a DNA match on 23andMe. And Emily can thank her daughter for the reunion.

The story begins with Izzy’s curiosity. Emily’s 11 year old daughter had wanted to explore her family tree on her mother’s side. Emily was adopted from South Korea and Izzy wanted to find her biological family. After matches here and there with very distant relatives, Izzy discovered a peculiar match over a year after joining. In March 2021, Izzy and Emily received a message from a woman named Molly Sinert. The message stated that the site had matched Molly as Izzy’s mother. This was news to Molly, being that she had never been in labor before and did not have any children.

Molly, not looking for family on the site but rather for genetic traits, had actually found her niece with a 49.96% DNA match, making Molly and Emily identical twins. After hearing Emily’s heartwarming story, High Swartz flew her and Izzy to Florida to meet Molly for the first time The sisters would properly meet each other for the first time on the rooftop of the Hyatt Centric Ft. Lauderdale on their 36th birthday, March 29th 2021.

GMA3, ABC’s Good Morning America afternoon show was there for the reunion. Watch the video and go in depth into their heartwarming story.

Emily and Molly were born in 1985 in South Korea. After birth, they were inexplicably separated and taken to separate orphanages, where Emily was adopted by a Jewish family in Pennsylvania A few months later, Molly would be adopted to a Jewish family in Florida.

Molly plans to next visit Emily in Pennsylvania in the coming months while the new-found sisters also hope to visit South Korea together. “Uncovering more about our story and possibly even finding new relatives would be another dream come true,” states Emily.

Navigating the Social Security Disability Benefits Application Process in 2021

Obtaining medical records from applicants’ medical providers is a crucial part of processing applications for disability. COVID-19 has affected the staffing of physicians’ offices resulting in long delays in obtaining those records. Social Security also sends many applicants for medical evaluations when there is not sufficient evidence in the records to make a decision on a case. For months the vendors that provide physicians to perform these evaluations were closed. While most have reopened with restrictions, appointments have accumulated resulting in continued delays.

If you are applying for disability benefits, requesting reconsideration of a denial of benefits or are waiting for a hearing before an Administrative Law Judge in 2021, below are answers to the most frequently asked questions we have received.

I was diagnosed with COVID-19 and was hospitalized. Am I eligible for social security disability benefits?

The short answer is no.
In order to qualify for disability benefits, one of the requirements is that you must have a condition that resulted in you being unable to work for 12 months or a condition that is expected to keep you from working for at least 12 months.

As we gather more information about COVID-19, it appears that there may be individuals who experience long term or permanent damage to their lungs, heart, kidneys, and nervous system which could result in an inability to work for the required one-year or more. If you fall into this category, they you may be eligible for benefits.

What information should I have available for the SSDI application?

Applicants should have information such as the names, addresses and phone number of your treatment providers readily available. SSA.gov also provides a more detailed list of the information you should have prior to starting your application.

Do I need an SSDI lawyer to file my application?

There is no requirement for you to be represented by an SSDI attorney to apply for Social Security Disability Benefits (SSDI or SSI).

So, what are the benefits of having an SSDI lawyer on my side?

It may be beneficial to have an attorney assist your through the application process. Experienced disability attorneys will be able to answer your questions as you go through the process. They can provide assistance with obtaining, reviewing and interpreting your medical records, completing forms that are required after the initial application is filed, and be there to assist you through the next steps of the process if your application is denied.

How long will it take for Social Security to process my application and make a decision on my case?

While there was no definitive timeframe for processing an application prior to COVID-19, the average wait time from start to finish was around 3 to 5 months. Currently, during the pandemic, it is taking closer to 4 to 7 months depending on the availability of medical records.

If Social Security requires you to attend a medical evaluation it may further prolong a decision on your case. Obtaining copies of your medical records and providing them to Social Security with the application and returning all forms/documentation requested by Social Security in a timely manner, may shorten your wait time.

I was diagnosed with cancer. Is there anyway to get my SSDI application processed more quickly?

Social Security has a Compassionate Allowance Program which identifies claims where the applicant’s disease or condition clearly meets Social Security’s statutory standards for disability. There is a list of diseases and conditions that include certain types of cancers, adult brain diseases and rare disorders that affect children that will trigger Social Security to expedite a case. The complete list of Compassionate Allowance diagnoses can be found on SSA.gov.

When should I apply for social security disability benefits?

The answer to that questions may vary depending on who you ask.
Due to the lengthy process, many disability advocates suggest applying for benefits as soon as you are unable to work. In my practice, I consider each case individually before making a recommendation as to when you should apply for disability. Several factors play into my decision-making process including:

  • the length and frequency of medical treatment
  • whether or not the medical records document the applicant’s limitations
  • how long someone has been out of work
  • what kind of work they performed, their age, etc.

A little time preparing an SSDI case can shorten the time processing a claim and increase the chance of a favorable outcome.

What is the maximum amount you can receive per month in 2021 for SSDI benefits?

The maximum amount you can receive per month in 2021 is $3148.00. Also, SSDI benefits are considered taxable income.

What is the maximum amount you can receive per month in 2021 for SSI benefits?

SSI monthly benefit payments start the 1st full month after the date you became disabled. The maximum amount an individual can receive in 2021 is $794.00 per month. The maximum amount a couple can receive is $1,191.00 per month. SSI beneficiaries are eligible for Medicaid when payments begin. SSI payments are not taxable income.

The questions addressed here are only a very small portion of those that will likely arise during this process. Obtaining an experienced and compassionate attorney that also has a strong medical background will be able to answer these questions for you and provide the assistance you need moving through the process.

If you are in need of an SSDI attorney at any crucial step of the social security disability process, please contact Linay Haubert R.N., Esq of the Doylestown office of High Swartz law firm at 215-345-8888.

Offensive Social Media Posts by Pennsylvania Employees Justify Termination

“If you can’t say anything nice, don’t say anything at all,” our parents told us. Two recent Pennsylvania employment termination cases give this same advice to adult social media users. In both cases, courts upheld terminations for employees’ mean-spirited off-duty social media comments.

In Carr v. Commonwealth, 230 A.3d 1075 (Pa. 2020), a PennDOT employee (Carr) encountered a poorly driven school bus while driving to work. She posted to a Facebook group, “School bus drivers don’t give a flying s**t about those babies” and said she would “gladly crash into a school bus”. She added, “You’re (sic) kids are your problem. Not mine.” Carr disclosed that she worked for PennDOT. Facebook users sent Carr’s post to PennDOT, which terminated her for misconduct.

Carr filed a civil service appeal , claiming First Amendment free speech rights. PennDOT argued that Carr’s off-duty conduct undermined PennDOT’s traffic safety goals and harmed PennDOT’s reputation. The Civil Service Commission upheld PennDOT’s action.

Surprisingly, the Pennsylvania Commonwealth Court overturned Carr’s dismissal. Commonwealth Court viewed Carr’s comments as protected speech about a matter of public concern, despite the reprehensible tone.

The Pennsylvania Supreme Court reversed Commonwealth Court and upheld Carr’s dismissal. The Court held that Carr’s Facebook rant interfered with PennDOT’s highway safety mission. PennDOT therefore had reasonable concerns about adverse effects on PennDOT’s ability to carry out its duties. Commonwealth Court therefore was wrong to hold that Carr’s interest in commenting on bus safety outweighed PennDOT’s broader public safety interest. In short, Carr’s personal rant had limited public importance but caused significant detriment to PennDOT.

Justice Wecht concurred, stating that Carr’s comments raised no public concern at all. He also discussed social media platforms’ potential to disrupt agency operations, suggesting that public employees consider possible employment consequences before making off-hours social media comments.

Ellis v. Bank of NY Mellon Corp., 2020 WL 2557902 (W.D. Pa. May 20, 2020), affirmed, 2021 WL 829620 (3rd Cir. March 4, 2021) (not precedential) also mentioned vehicular violence in a Facebook post. Ellis was a white at-will employee in BNY Mellon’s Pittsburgh wealth management department. During an East Pittsburgh street protest after police killed an African-American teenager, a local councilman drove a car through the crowd. Ellis commented on her public Facebook page, “He should have taken a bus to plow thru.” Her Facebook account disclosed that she was a Mellon employee.

Public reaction was immediate. The public “inundated her employer with complaints” on Facebook and the Bank’s ethics hotline, and to the CEO and Human Resource Chief. They demanded to know if the post reflected Mellon’s values.

After an emergency investigation, Mellon terminated Ellis immediately. Mellon decided that Ellis had violated Mellon’s Social Media Policy prohibiting employees from conduct harming the Bank’s reputation. This Policy warned that violations could lead to termination. The Bank told Ellis that her post was offensive, showed poor judgment and disrespect for others, and encouraged violence.

As an at-will private sector employee, Ellis lacked First Amendment protection for off-duty comments. However, Ellis filed a race discrimination claim. She complained of harsher treatment than African-American employees who posted Facebook comments on the same incident or police brutality. BNY Mellon moved for summary judgment, contending that Ellis failed to make out a prima facie case because the African-American comparators were not similarly situated to Ellis. The comparators worked in different positions with different responsibilities and supervisors. The court granted summary judgment to Mellon. The court contrasted Ellis’ posting from the comparators’ postings, holding that Ellis addressed current news and supported driving through a crowd. The Court held that the Bank had legitimate, non-discriminatory grounds to fire Ellis for a posting that “was offensive in nature, advocated violence, demonstrated extremely poor judgment, and created a reputational risk” to the Bank. In a very brief opinion, the Third Circuit recently affirmed the District Court.

Our parents’ warning was right. And before posting on social media, employees should also remember the warning given law enforcement, albeit in a different context: “You have the right to remain silent; anything you say may be used against you.”

Should I form an LLC for an Investment Property

So you want to invest in real estate, possibly buying one or more investment properties, but are not certain if you should buy them in your own name, as husband and wife or through some form of legal entity. The decisions you make now regarding the purchasing of the real estate could save you time and money in the future. That’s why is pays to speak with a real estate attorney near you.

Should I buy rental properties in my own name or as a corporation?

There are various forms of entity to choose from, sole proprietorship, general partnership, limited partnership, limited liability company (real estate LLC) or corporation (C-corp or S-corp). Initially, it is best not to own investment real estate in your own name or a general partnership. In both cases, the individual owner and each general partner will be personally liable for debts/liabilities arising out of the real estate holding.

It is also preferable, in Pennsylvania, not to hold title in the name of a corporation as selling it triggers additional tax liability and the need for tax clearance certificates, which can delay closing on the sale.

LP or LLC? Which entity is best to purchase a rental property?

Eliminating individual ownership and general partnership essentially leaves you with either an LLC or limited partnership. An LLC is cheaper and easier to set up and provides the same level of liability protection as a limited partnership as well as the same pass through tax benefits to the members of the LLC. A limited partnership requires the creation of a general partner, typically a corporate entity or limited liability company, which remains liable for the debts and liabilities of the limited partnership. The limited partners are shielded from liability. But that necessitates the creation of a limited partnership and a general partner. A limited liability company does the same work, with half the effort.

Can I transfer the rental property title to the entity after it’s been purchased?

As a preliminary matter, whatever decision you make regarding title to the property, make your final decision before buying the property. You don’t want to buy it as an individual and then after acquiring it transfer it to an entity you create. Such a scenario can create a double payment of real estate transfer tax, which can be significant depending on where you live. Thirty eight states, including Pennsylvania, have taxes that are paid for transferring title to real estate.

In Pennsylvania, if you buy property in your own name (and pay the transfer tax on that acquisition) and then transfer it to a company you set up to hold title to the real estate, you have to pay transfer tax a second time. To avoid that, simply choose a form of ownership and stick to it. Check out our past articles on county-specific real estate transfer tax for Philadelphia and Montgomery County, PA.

In summary, many real estate companies take the form of real estate LLC for the reasons noted above. If you need assistance in forming an LLC for an investment property, talk to one of our real estate attorneys. Our law firm serves Bucks and Montgomery counties. Call today: 610.275.0700.

Going Pro-Se? Why Hiring a Lawyer is Crucial to Your Case

An unfortunate fact of life is that at some point, almost everyone will become involved with the court system. Here are some reasons why hiring a lawyer will benefit you in the end.

In 2016, approximately 84 million cases filed in state trial courts, according to the Court Statistics Project. Even if you are not involved in a ‘traditional’ lawsuit, wills, business arraignments, separations, and more often involve attorneys and carry heavy consequences for all involved. In these situations, many choose to hire a lawyer before moving forward.

It can be tempting, from a financial standpoint, to forego a lawyer and represent yourself (appearing “pro se”). The costs of representation by an attorney, even one without decades of experience, can range from costly, yet feasible, to prohibitively expensive in some cases – particularly when the length of representation is difficult to determine from the start.

So why should you hire an attorney?

When facing criminal charges, the local public defender’s office will appoint a lawyer for you, if you cannot afford one, in keeping with your constitutional right to an attorney. But in most cases, hiring a lawyer is the single best thing that you can do to ensure that your legal rights are protected, and that you receive the most favorable outcome in your case. Here’s why.

  1. The Legal System is Complicated.
    First and Foremost, the legal system is complicated. Besides the basics of initiating a lawsuit, a myriad of obstacles and procedures await anyone seeking to bring a case or defend against one. Even basic steps, such as figuring out who to contact and what the deadlines are, can be difficult to locate for someone not well-versed in the court rules and procedures.

    Further, these are often answers that can’t be found with a quick internet search; understanding and applying the rules can be a frustrating task even for individuals with prior exposure to the legal system. The average individual faces a severe disadvantage when going against another party who has hired a lawyer; the way to avoid becoming entangled in a web of complicated rules and procedural requirements is to hire an attorney who has experience with them.
  2. Legal Advice and Guidance is Valuable.
    When faced with the pressures of a lawsuit, an individual must make choices involving not only who to sue, but often how much to sue for – or in the case of a defendant, how much to potentially settle for. These questions can be hugely influential on the outcome of a case, and are difficult at best – not to mention the smaller decisions that must be made such as which witnesses to call, and which arguments to make. A seasoned lawyer is able to guide you with advice designed to achieve the best outcome in your case or issue – even if you have experience in a particular area, having someone there to provide guidance can be crucial. In particularly personal cases, such as criminal matters or child custody, it can be especially difficult for someone to make these decisions with a clear head; the highly emotional nature of these cases can make sensible decision-making difficult, if not impossible. Hiring a lawyer will ensure that you won’t make legal decisions that could hurt you in the long run.
  3. The Stakes are (Usually) High.
    The threat of spending time in jail, and having a criminal record, is a serious risk that most would not want to take on alone. As mentioned above, a lawyer is guaranteed through the public defender’s office; but a civil case has no such guarantee of representation, and often carries with it massive financial risks as well.

    In lawsuits arising out of car accidents, for example, the average settlement ranges from $20,000 to $30,000 – and that’s assuming the injuries sustained by the plaintiff weren’t serious. If you find yourself defending against a case such as this, the risk of owing this amount (or more) outweighs any short-term savings from not hiring a lawyer.

While the legal system is complicated and carries great risks, these problems can be minimized by retaining a lawyer. Besides their practical knowledge in the field, their guidance, advice, and reassurances can greatly reduce the stress that accompanies the legal system and will almost always result in a more positive outcome for you.

How can a business obtain trademark protection when its own name generically describes its goods or services?

In the past, a business may be out of luck if it was seeking a trademark protection for a generic name. However, in the recent Supreme Court of the United States case USPTO v. Booking.com B.V., 140 S. Ct. 2298 (2020), the Supreme Court ruled in favor of a company named Booking.com, a business which provides the service of making online travel reservations.

Let’s start with what is considered “generic” by the USPTO. A generic trademark is the good or service sought be protected, such as a soft drink company calling itself “soda,” or a bicycle company applying to register its latest product it calls a “bicycle.” These generic marks fail at distinguishing the good or service it seeks to protect from other similar goods and services in the same class.

Without further descriptive elements, the mark has no distinctiveness and the USPTO will not grant its registration. Moreover, trademarks can be cancelled/revoked if the brand name becomes generic. “Aspirin” was owned by Bayer until revoked. “Elevator” was owned by Otis until revoked.

So what happens if a business with a generic name seeks trademark registration? What can a business do to obtain trademark protection over its goods and services if it hasn’t developed any descriptive names for those goods and services?

The USPTO rejected four trademark applications filed by Booking.com. Though each mark featured different travel-related elements and images, all included the term “Booking.com.” In explaining its reasoning for rejection, the USPTO contended that the word “booking” is generic as its relates directly to making travel reservations, and the “.com” is similarly generic since it fails to add specific meaning that would distinguish Booking.com from its competitors. Combining a generic term (booking) with another generic term (.com), the USPTO argued, did not warrant trademark registration.

In an 8-1 decision led by the late Justice Ruth Bader Ginsberg, the Supreme Court agreed with lower courts’ decision to overrule the USPTO’s decision denying registration of any mark styled as “generic word.com.” The Supreme Court ruled that consumers determine whether such trademarks are generic. And, to the contrary to the USPTO’s position, by attaching the “.com” suffix to the proposed trademark, Booking.com had actually added distinctiveness.

The Supreme Court recognized that consumers did not identify the mark “Booking.com” with the entire class of the travel reservation website industry, but with that specific company known as Booking.com. Ultimately, whether consumers perceive an otherwise generic mark to identify a class of goods or services or specific exemplar of that class will determine its eligibility for trademark protection.

Current business owners, especially those who own businesses with a “.com” or other internet domain extensions in its name, should be mindful of the Booking.com decision, as they can now confidently apply for trademark registration for their company’s name. The Booking.com decision may be even more impactful in the age of the COVID-19 pandemic, when consumers conduct business—and their everyday lives—online at an ever-increasing clip. Companies which avoid traditional brick and mortar facilities for online only business may now be more inclined to include the “.com” as part of their branding.

Though its is not clear whether the Booking.com opinion has created greater opportunities for the registration of generic trademarks, businesses and individuals seeking registration of a generic mark will likely point to the new precedent when prosecuting the mark with the USPTO. Applicants will still need to demonstrate distinctive elements in the proposed mark, just as the “.com” suffix increased the distinctiveness when combined with the otherwise generic term “Booking.” Businesses and individuals looking to trademark their company name, goods, and/or services should consult an attorney to determine how successful they would be in applying for trademark registration.

What Happens to A Deceased Relative’s Debt When They Die?

A common concern of clients during the initial estate planning process is what happens to debt when you die. This is a valid concern for next of kin and estate beneficiaries, and we’ll delve into it below.

Who is responsible for paying off the debts of a loved one? Can the debt of the deceased be forgiven? What happens if the deceased estate does not have enough money to pay the debts? The answers to these questions can be found in case law, the Internal Revenue Code & Regulations and Pennsylvania statutory laws. To make it easier to understand what happens to debt when you die, let’s look at a hypothetical estate.

Ester, a Pennsylvania resident, died with $50,000 in credit card debt, medical expenses from her final illness, and various utility expenses associated with her West Chester Borough home. Ester’s assets are her home, and funds of $25,000 held in her checking and savings accounts. Ester’s children are the beneficiaries of her residuary estate per her Will.

Pennsylvania law, 20 Pa.C.S.A. Section 3381, states that Ester’s debts don’t just disappear at her death. If the debts don’t disappear, who pays? Only Ester’s Estate is responsible for payment of her debts unless a third-party (family member, neighbor, etc.) co-signed a loan or credit card with Ester.

For now, let’s assume no one co-signed any loans with Ester. Ester’s credit card debt, her final medical expenses and her various utility expenses will be paid by her estate from the assets that pass pursuant to the terms of her Will. These assets are Ester’s home and the $25,000 funds from her checking and savings accounts. Ester’s Executor will need to sell the home and use the proceeds from the sale to pay off the credit card debt, final medical expenses and utility bills.

It’s possible that Ester’s estate could fail to pay her credit card debts due to insolvency (inability to pay one’s debts). And it’s possible that the Executor’s attempts to have the credit card discharged fail as well.

What happens if the estate can’t pay the debts?

If you recall, Ester has used her credit cards to purchase items worth $50,000. The borrowed funds used to purchase items are not included in Ester’s gross income because at the time Ester borrowed the funds, she also created a corresponding liability to pay back the funds to the credit card companies. Ester’s overall net worth has not increased. Courts have consistently held that borrowed funds are not included in taxpayer’s income. The IRS has consistently agreed with this treatment.

Do credit card companies forgive the debt when someone dies?

It would be logical to think that if the credit card companies forgive the debt, the debt should disappear, right? WRONG! The general rule under the IRS Rules & Regulations states that the cancellation of a debt for less than adequate consideration causes the debtor to recognize ordinary income in the amount of debt that was forgiven.  Section 61(a)(12) of the Internal Revenue Code states that gross income includes “[i]ncome from the discharge of indebtedness.”  No matter how you slice it or dice it… “cancellation of indebtedness”, “cancellation of debt”, “discharge of debt”, and “forgiveness of debt” converts to ordinary income!

The credit card companies report the forgiveness of deceased debt to the IRS by using a 1099-C – Cancellation of Debt form. Even if the credit card company fails to issue a 1099-C form, the cancellation of debt income is still reportable on the estate fiduciary income tax return.

The $50,000 of credit card debt has been converted into income, which must be reported on the estate’s federal fiduciary income tax return, Form 1041 – US Income Tax Return for Estate and Trusts. Here, at the very least, Ester’s estate has $50,000 in reportable income to the IRS. If an estate has reportable income, it likely has income tax to pay unless the estate’s deductions wipe out income.

But what if Ester’s estate is insolvent (unable to pay the taxes)? Section 108 of the IRS Code provides exceptions for which Ester’s estate may be eligible. Section 108(a)(1)(B) excludes from gross income the cancellation of indebtedness of an insolvent debtor, but only to the extent of the amount of the debtor’s insolvency immediately before the debt was forgiven. Section 108(a)(3). So if Ester’s estate is insolvent prior to the debt being forgiven, the estate may exclude the cancellation of debt using IRS Form 982, Reduction of Tax Attributes Due to Discharge of Indebtedness.  

It’s important to note that only assets that pass through probate are considered for determining insolvency. Recall probate assets are those assets that pass pursuant to the terms of a decedent’s Will. Here, probate assets would be Ester’s West Chester Borough home and the funds held in the checking and savings accounts. An estate with cancellation of debt  (COD) income and very few probate assets will be insolvent if all assets pass directly to beneficiaries through beneficiary designations (life insurance, IRAs, 401(k)). Designated beneficiaries who receive these kinds of assets are not liable for paying a decedent’s debts.

So who is responsible for paying the debt?

In the end it falls on the estate to pay the decedent’s debt. If the debt is forgiven, it becomes ordinary income reportable on the estate’s fiduciary income return regardless if a Form 1099-C was issued by the creditor.  If the estate is insolvent, it may be able to exclude the cancellation of debt under Section 108(a)(3) of the IRC.

Before undertaking an estate administration without an estate lawyer, remember the law is complex because:

  1. there are usually exceptions to the rules,
  2. the law changes frequently, and
  3. multiple areas of law can impact an estate, such as IRS Rules & Regulations, Pennsylvania statutory and case law.