Thesis (doctoral)--Friedrich-Alexander-Universität zu Erlangen.

M. Comm. / The purpose of the study is to identify some guidelines to determine if any legal expenses — as defined in section 11(c) of the Income Tax Act, No 58 of 1962 ("the Act") actually incurred in respect of any claim, dispute or action at law arising in the course of or by any reason of the ordinary operations of a taxpayer in the carrying on of his trade —, are deductible. The admissibility of legal fees as a deduction depends primarily upon whether, in applying the provisions of section 11(a), the taxpayer is able to establish that such expenditure had been incurred in the production of income and was not of a capital nature. Furthermore, in terms of paragraph (c) of section 11, a taxpayer is entitled to deduct from his income any legal expenses, other than those of a capital nature, which he incurs and which arise in the course or by reason of the ordinary operations undertaken by him in the carrying on of his trade.The deduction is, however, limited to so much thereof as it: Is not of capital nature; Is not incurred in respect of any claim made against the taxpayer for the payment of damages or compensation if by reason of the nature of the claim or the circumstances, any payment which is or might be made in satisfaction or settlement of the claim does not or would not rank for deduction under section 11(a) or (b) of the Act; Is not incurred in respect of any claim made by the taxpayer for the payment to him of any amount which does not or would not constitute income of the taxpayer; and is not incurred in respect of any dispute or action at law relating to any such claim as in referred to in (ii) and (iii) above. The admissibility of legal expenses as a deduction depends primarily upon whether, in applying the provisions of section 11(a), the taxpayer is able to establish that such expenditure had been incurred in the production of income and was not of a capital nature. Furthermore, to establish, in terms of paragraph (c) of section 11, whether a taxpayer is entitled to deduct from income any legal expenses, other than those of a capital nature, which he incurs and which arise in the course or by reason of the ordinary operations undertaken by him in the carrying on of his trade.

The Canadian proceeds of crime provisions, Part XTJ.2 of the Criminal Code, are targeted at enterprises that are motivated by the desire to generate profit and accumulate wealth from criminal activity. The main purpose of Part XII.2 is to provide the police and prosecution with powerful new tools to attach the proceeds of crime, and the courts with the power to forfeit such proceeds. This thesis will examine how, in recognition of the procedural and substantive problems with this legislation and in contrast to American legislation, Parliament included numerous provisions to balance such extensive powers. The balancing mechanisms included a provision that allows reasonable legal fees to be paid out of seized or restrained property that is alleged to be proceeds and another that requires an in camera session to be held without the presence of the Attorney General, to determine the reasonableness of such fees. The Parliamentary record explicitly demonstrates that the balancing provisions were meant to ensure that the pre-trial restraint and potential forfeiture of property would withstand Charter challenges, especially with regard to an accused's rights to counsel, fair trial and full answer and defence. In this thesis I will analyze the complexities of proceeds litigation and demonstrate how this necessitates adequate legal representation to ensure that an accused's Charter rights are protected. This thesis explores in depth how Parliament recognized the need for balancing mechanisms that permit funds to be released for an accused to retain private counsel. However, these mechanisms have been significantly narrowed by subsequent judicial interpretation. A result of this line of authority is that defence work in the proceeds area has become very difficult. If reasonable legal fees are not taken from seized proceeds, provincial legal aid plans will have to provide for appropriate counsel. This may not be a realistic option given the funding of these plans and their stated objection to funding proceeds cases. Therefore, in this thesis I will argue that if private counsel must be retained the right to counsel could be effectively forfeited, unless a portion of the seized or restrained assets are released for reasonable legal fees. This thesis will attempt to provide a coherent basis for future interpretation of the Part XII.2 provisions that affect legal fees. The approach taken will incorporate the competing interests of accused persons and the State without undermining the objectives of the legislation. This thesis will focus on Canadian legislation and jurisprudence, but will also have a comparative component that examines how these issues have been dealt with in Australia, England and the United States.

Thesis (doctoral)--Universität, Kiel, 2007. / Includes bibliographical references (p. xv-xix).

The Canadian proceeds of crime provisions, Part XTJ.2 of the Criminal Code, are targeted at enterprises that are motivated by the desire to generate profit and accumulate wealth from criminal activity. The main purpose of Part XII.2 is to provide the police and prosecution with powerful new tools to attach the proceeds of crime, and the courts with the power to forfeit such proceeds. This thesis will examine how, in recognition of the procedural and substantive problems with this legislation and in contrast to American legislation, Parliament included numerous provisions to balance such extensive powers. The balancing mechanisms included a provision that allows reasonable legal fees to be paid out of seized or restrained property that is alleged to be proceeds and another that requires an in camera session to be held without the presence of the Attorney General, to determine the reasonableness of such fees. The Parliamentary record explicitly demonstrates that the balancing provisions were meant to ensure that the pre-trial restraint and potential forfeiture of property would withstand Charter challenges, especially with regard to an accused's rights to counsel, fair trial and full answer and defence. In this thesis I will analyze the complexities of proceeds litigation and demonstrate how this necessitates adequate legal representation to ensure that an accused's Charter rights are protected. This thesis explores in depth how Parliament recognized the need for balancing mechanisms that permit funds to be released for an accused to retain private counsel. However, these mechanisms have been significantly narrowed by subsequent judicial interpretation. A result of this line of authority is that defence work in the proceeds area has become very difficult. If reasonable legal fees are not taken from seized proceeds, provincial legal aid plans will have to provide for appropriate counsel. This may not be a realistic option given the funding of these plans and their stated objection to funding proceeds cases. Therefore, in this thesis I will argue that if private counsel must be retained the right to counsel could be effectively forfeited, unless a portion of the seized or restrained assets are released for reasonable legal fees. This thesis will attempt to provide a coherent basis for future interpretation of the Part XII.2 provisions that affect legal fees. The approach taken will incorporate the competing interests of accused persons and the State without undermining the objectives of the legislation. This thesis will focus on Canadian legislation and jurisprudence, but will also have a comparative component that examines how these issues have been dealt with in Australia, England and the United States. / Law, Peter A. Allard School of / Graduate

The purpose of this study was to compare the legal costs of Texas public school districts during the school years 1980-81, 1981-82, and 1982-83 with the preventive law practices utilized by those districts. A survey was made of Texas superintendents' knowledge of school law. The data were contrasted with legal costs and the preventive law practices of the district. Two survey instruments were developed, and the case study approach was utilized. A survey was sent to the 1,101 Texas public school superintendents. The twenty-five item instrument was designed to solicit information regarding the amount of money spent by districts and the types of preventive law practices that school districts use to reduce legal costs. A legal awareness questionnaire was developed and administered to 72 of the 542 superintendents who responded to the first survey instrument. Three school districts were selected to be case study sites. The data from the instruments were analyzed to determine if a relationship existed between a district's legal costs and its preventive law practices, a district's legal costs and the superintendent's knowledge of school law, and a superintendent's knowledge of school law and the district's preventive law practices. The major conclusions of the study were as follows: (1) The larger the school district, the more money the district spends on legal costs. (2) Districts that incorporate preventive law activities do not necessarily have lower legal costs. (3) The differences in legal costs of a district and the types of preventive law activities utilized by the district are generally associated with district size, rather than with the absence of presence of the specific preventive law activity. (4) The legal knowledge possessed by the superintendent does not have an impact on the legal costs of the district. (5) The superintendent's knowledge of school law does not affect the number of preventive law activities used in the district.