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Flashcards in Business Law Deck (129):
1

3 ways that an Accountant can charge Contingent fees for a tax client

1. IRS Examination
2. Where a claim for refund is solely in connection with determination of statutory interest or penalties
3. Representing the client in judicial proceedings

2

Is there a requirement for written communication for tax advice?

No, but it would be wise

3

Should a CPA warn clients about tax return consquences

Yes, it is required of SSTS No.1

4

Can a position lacking a reasonable basis be taken when properly discosled

No, it does not have a reasonable basis

5

If documentation is required for a deduction and the accountant doesn't ask for the documents can they be punished?

Yes

6

If a tax position is "more likely than not" that it will be sustained if challenged is the accountant required to inform the client about the disadvantages?

No

7

Disclosure of estimates is not required in most situations (T/F)

True

8

Tax Return prepare is required to give their ID number to whom and who not

Must give to IRS, not required to give to client

9

Would a trustee who prepares a tax return for his trust be considered a TRP?

No

10

Reasonable basis that has a 25% chance or greater to be sustained should be disclosed (T/F)

True

11

Ultramares always look for what?

Privity

12

Proper delay of IRS request is only proper when...

the CPA believes after investigation in good faith the information is prvelaged

13

If a state board of accountancy takes away a CPA license, a CPA is automatically expelled from what?

AICPA

14

JEEP stands for what?

Joint Ethics Enforcement Program

15

Fraud liability runs to who?

Reasonable Foreseeable Parties

16

Negligence liability typically runs to who?

Limited class of parties the accountant knows will relay on the information

17

Negligence provides for what types of damages

Compensatory

18

Negligence does not provide for what type of damgages

Punitive

19

Constructive fraud is equal to what?

Gross Negligence

20

What is required for an accountant to be convicted under common law?

Make a misstatement with knowledge or recklessly make the misstatement

21

What is a good defense against negligence for an auditor?

The audit was performed under GAAS

22

Are CPA's liable for written and oral promises?

Yes, both

23

What can be a defense under common law liability

Lack of Scienter (Intent)

24

Scienter can be established by what?

1. Knowledge of material misstatement
2. Acted Recklessly

25

FCPA requires what 4 items?

1. Transactions are executed with management's instructions
2. Transactions are recorded to properly prepare financial statements and maintain accountability for assets
3. Access to assets is authorized
4. Recorded assets are compared to existing assets on a requital interval

26

What must happen before a RICO suit for Securities Fraud can be brought?

The defendant must already be convicted of Securities fraud criminally

27

The accounting portion of FCPA is only required for who?

SEC Registrants

28

To be found guilty of Racketeering under the RICO act what must have occurred?

Conducted or Participated in the Conduct

29

Who recognizes accountant-client privilege?

Congress at 15 states

30

Exceptions to accountant-client privilege under IRC

1. Criminal Matters
2. Matter before IRS or Federal Court brought by or against the U.S.
3. Tax Advice on State and Local Matters
4. Written advice of Tax Shelters

31

Securities that are exempt from under SEC

1. Bank
2. Common Carrier
3. Bankruptcy receivers
4. Insurance Policies/Annuities

32

What are the Regulation D Exemptions

1. 504 (under $1 mm)
2. 505 (under $5 mm)
3. 506 (private-placement unlimited)

33

What are the primary Securities transactions that are exempt

1. Small offerings
2. Private Placements
3. Intrastate Transactions

34

Requirement for rule 147

1. All offerees must be in state
2. 80% of issures asset and revenues must be in state
3. 80% of proceeds must be used in state

35

How is a Unilateral Contract accepted?

by action

36

How is a Bilateral Contract formed?

Each party makes a promise

37

What is a executory contract?

A valid contract where performance has yet been completed

38

What is a executed contract?

Performance has been completed

39

What does the Uniform Commercial Code govern?

Sale of Goods

40

What does common law govern?

Services and Real Property transactions

41

Are Advertisements Offers?

No, the are invitations to trade

42

If the offer is conditioned for a specific date and a letter is put in the mail that day and not received until the next has the offer been successfully accepted?

No, because the offer had to be received by that date

43

Consideration for a contract must have what characteristic?

Be legally sufficent

44

The Parole Evidence Rule excludes what?

Actions taken before a contract was formed

45

Does Accord and Satisfaction work for Unliquidated Debt or Liquidated Debt

Unliquidated Debt

46

Can a contract be formed but not enforceable?

Yes, but if not in writing under the Statute of Frauds then it's not enforceable

47

If an unilateral error in a contract was made and the other party knew about it is the party that drafted the contract liable?

No

48

Physical threats do what to a contract?

Voids

49

Fraud in the inducement of a contract does what?

Makes it Voidable

50

Methods to Discharge a contract (5)

1. Accord & Satisfaction
2. Mutual Recession
3. Release
4. Waiver
5. Novation

51

When does the Statute of Limitations start for a breach of contract?

When the contract is breached

52

A party is considered what when a party to the contract at issue owes the them money and the contract at issue was made to satisfy the debt?

Creditor Beneficiary

53

Is a UCC contract enforceable even is it is silent as to terms?

Yes

54

Faxes are part of the "Mailbox Rule" (T/F)

True

55

A contract under the UCC must have what?

Quanity

56

3 ways that a seller can accept a buyers offer under UCC

1. Shipment of Conforming Goods
2. Prompt Promise to ship goods
3. Shipment of nonconforming goods without notice of accommodation (breaches contract)

57

Is an oral modification of a contract under $500 binding?

Yes

58

Open Acceptance of a UCC contract does what to a contract

makes it unenforceable

59

Contracts under Statute of Frauds (5 types)

1. Guaranty of debt
2. Real property
3. Performance takes longer than 1 year
4. Goods priced over $500
5. Executors personal liability for debts of estate

60

Where are goods delivered to under FOB Destination Contract?

Placed stated in the contract

61

Under UCC when does the title and risk of loss shift to the buyer

When goods are delivered to a Common Carrier

62

The seller must do what before title can pass?

Identify the goods

63

Implied Warranty of Merchantability is implied by what?

Law

64

How does implied Warranty of Merchantability Arise?

Automatically upon a sale by a merchant

65

How does express warranty of merchantability arise?

Goods are sold as described

66

Implied warranty of fitness occur how?

Seller selects goods knowing the buyer's intent and the buyer relays on the seller's selection

67

3 was to create Express Warranty under UCC

1. Affirmation of Fact or Promises
2. Description of Goods
3. Sample or Model

68

3 Implied Warranties

1. Fitness
2. Merchantabiltiy
3. Usage of Trade

69

Failure of a buyer to reject goods after inspection does what?

Creates Acceptance

70

Can injured parties always collect liquidated damages?

No if they are viewed as a penalty

71

A seller can retain the lesser of what if a buyer defaults

1. $500
2. 20%

72

For Specific Performance or Replevin items must have what qualities?

Unique or Identified

73

A Promissory Note is made between how many parties?

2

74

A Draft is a instrument made between how many parties?

3

75

Is a note that says "Pay six months After I go to College" negotiable?

No

76

2 Categories of "Orders to Pay", Draft instruments

1. Draft
2. Check

77

2 Categories of "Promise to Pay" instruments

1. Notes
2. CDs

78

Is an instrument subject to another agreement negotiable?

No

79

Who is the drawee on a check or draft?

The Bank

80

Who is the Payee on a check or draft

Who is receiving the money

81

Who is the Drawer on a check

Person is wrote the check

82

What type of endorsement limits the warranties that the transferor of the instrument gives?

Qualified

83

What type of endorsement limits the liability of the endorser to a subsequent holder

Restrictive

84

What type of endorsement is made to a specific person

Special

85

Requirements for a Security Interest to Attach

1. A Writing (few exceptions)
2. Secured Party gives the debtor something of value
3. Debtor has "rights" to the collateral

86

What is it called when the creditor gains rights in the collateral of a loan?

Security Interest Attaches

87

Does a security interest always have to be in writing to attach?

No, if the creditor has possession of the collateral

88

Methods to Perfect security Interest

1. Filing
2. Possession
3. Automatically
4. Temporary

89

If a not is non-negotiable, can a transfer create a holder in due course?

No

90

What must a draft have in order to be negotiable?

"Pay to Order" or "Pay to Bearer"

91

What is the exception to a draft saying "Pay to Order" or "Pay to Bearer"

If it's a check, payable on demand

92

An instrument that is not a check says, "Pay to Bob". Is it negotiable?

No

93

If a check, which is demand paper, is postdated. It is payable when?

Until the date it is postdated

94

If the bank is not given notice by the drawer that a check is postdated are they liable if the pay it before the post-date?

No, the drawer must give notice

95

When the seller ships nonconforming goods is the contract voided or voidable? And by whom?

Voidable, Buyer

96

Once a seller ships nonconforming goods, what has occurred?

Breach of Contract

97

If a seller ships nonconforming goods FOB Shipping point, title and loss is with who?

Title is with the Buyer, Risk of loss is still with the Seller

98

If a buyer receives nonconforming goods and does not accept them what must they do?

Follow the Seller reasonable instructions in returning them at the seller expense

99

If a buyer cancels a contract that the cannot cancel what must the seller do?

Trying to sell the goods, and recover the difference from the buyer

100

If goods are accepted under an oral contract and those goods and that part of the contract enforceable?

Yes

101

UCC Exceptions to General Statue of Frauds (4)

1. Merchant Confirmation Memo
2. Oral contract for Special Goods substantially completed
3. Admission under Oath of an Oral Contract
4. Buyer takes possession, performance

102

What is the Shelter Provision?

Preserve HDC even if someone acquires from HDC a note with knowledge of a personal defense, but not Real Defense

103

If a HDC does not present a check within 30 days and there is a bank failure is the drawer liable?

No

104

What are real defenses?

Those that can be asserted Universally

105

How is liability of a note transferred?

Signature liability stays, bearer liability is only the last bearer

106

Do drawers of a check have primary or secondary liability?

Secondary

107

Holder in Due course takes a promissory note free of what defenses?

Personal of the maker

108

Fraud in the execution is what type of defense?

Universal/Real

109

Are Letters of Credit Transferable

Generally No

110

Are Domestic Letters of Credit revocable?

Yes

111

Are International Letter of Credit revocable?

No

112

Who must a carrier deliver goods to under a nonnegotiable bill of lading?

Consignee

113

When a document is forged is it negotiable?

No

114

When does a security interest attach if a secured party takes possession of the collateral then signs a security agreement?

At time of possession

115

What must the debtor have in order for a security interest to attach?

Rights to the Collateral

116

Is proper filing required to create a security interest?

No

117

Does a security interest where the secured party has possession of the collateral need to be in writing?

No

118

When does a Purchase Money Security Interest require filing?

If for Equipment or Inventory

119

A sale to whom typically provides a PMSI automatically?

Consumer

120

A pawnbroker lending money is an example of what?

Takes a Perfect Security Interest by Posssession

121

How can a buyer be protected from a security interest?

In the Ordinary Course of Business

122

What is the time period for a secured party to file a new PMSI when the collateral moved to a new jurisdiction?

4 months

123

If a buyer has knowledge of a security agreement and takes title of the goods in the ordinary course of business do they take it free of the security interest?

Yes

124

When must the Creditor Sell Collateral (2 ways)

1. Consumer Goods
2. 60% or more of the purchase price paid by the debtor

125

Upon default a secured party has what options?

1. Recover under UCC 9
2. Judicial Remedies

126

Requirements for the filling of a PMSI

1. List or description of collateral
2. Names of Debtor & Secured Party
3. Address of the Debtor & Secured Party

127

Endorsement "without recourse" disclaims what liability?

Contract Liability

128

How is a check different from a draft?

Payable on Demand

129

Cosurties generally have what right?

Right to Contribution