Daniel Oran - Oran's Dictionary of the Law

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480 Take

Take Take has a wide variety of meanings in the law, but most are close to the ordinary language meaning. For example, in criminal law, to take something is to take it without the owner’s consent and with the intent to cheat or steal; the government is said to take a person’s property even when the government action only lowers the value of the property; when you inherit property, you take by descent; take-home pay is pay after deductions for such things as taxes, insurance, savings plans, etc.; a takeover is the gaining of control, but not necessarily majority ownership of a company (see tender offer); and to take up a note or other negotiable instrument is to pay or discharge it.

Take private Convert a business that is held by a large number of stockholders, with shares traded in a market, to one held by a few owners. Compare privatize.

Take the Fifth See Fifth Amendment.

Take the stand Testify as a witness in court.

Take-down 1. The time when a deal is actually performed, such as when goods have been both delivered and paid for. 2. The time when prearranged credit is actually used.

Take-out loan A permanent mortgage loan that pays off a construction loan.

Taking clause The last clause of the Fifth Amendment: “nor shall private property be taken for public use without just compensation.” Talesman Originally, a person taken from off the street or inside the

courthouse to serve as a juror; now, a member of a jury panel. [pronounce: taliz-man]

Tamper Make changes by meddling; interfere. For example, jury tampering is attempting to bribe, threaten, or otherwise illegally influence a juror.

Tangible Capable of being touched; real.

Tare Box or container weight subtracted from the total weight of goods. Target The thing aimed at. For example, a target company is the subject of a takeover by a tender offer; a target offense is the contemplated crime in a conspiracy; and a target witness is a person called before a grand jury because the government wants to get an indictment

against that person.

Tariff 1. An import tax or a list of articles and the import tax that must be paid on items on that list. A protective tariff is meant to protect local businesses from foreign competition; a retaliatory tariff is in response to a foreign country’s tax on goods from your country; and an antidumping tariff is to prevent foreign countries from selling their

Tax evasion 481

goods in the U.S. at a lower price than the goods sell for in the foreign country or at a price lower than manufacturing cost. 2. A public list of services, rates, charges, and rules of a public utility, such as an electric company.

Tax 1. A required payment of money to support the government. Some of the hundreds of different types of taxes are listed in no. 2. 2. Types of taxes defined in this dictionary include: ad valorem; capital gains; capital stock; capitation; collateral inheritance; direct; estate; excess profits; gift; holding company; income; indirect; inheritance; luxury; payroll; poll; progressive; property; regressive (see progressive); sales; selective; severance; stamp; surtax; tonnage; transfer; undistributed profits; unified transfer; use; withholding; etc. (see those words). 3. For tax certificate, foreclosure, lease, lien, sale, and title, see tax deed, then refer to the base word (certificate, etc.). 4. For tax assessment, audit, credit, deduction, exclusion, exemption, roll, schedule, shelter, table, etc., see those words. 5. Other tax words follow.

Tax avoidance Planning finances carefully to take advantage of all legal tax breaks, such as deductions and exemptions. Not tax evasion.

Tax benefit rule The principle that if a loss or expense deducted from taxes in one year is recovered in another year, the recovery will be taxed as income in that later year to the extent of the deduction.

Tax bracket A specified interval of income to which a specific tax rate is applied. For example, to income between X and Y dollars, a tax rate of Z percent is applied.

Tax Court A United States court that takes appeals from taxpayers when the I.R.S. has charged them with deficiencies (underpayments) in their payments of income, estate, or gift taxes. (The U.S. District Courts also handle tax cases.) There are also specialized tax courts in some states.

Tax deed A proof of ownership of land given to the purchaser by the government after the land has been taken from another person by the government and sold for failure to pay taxes. Also, a tax certificate is a temporary proof of ownership that can be turned into a deed if the original owner does not redeem the property by paying the taxes due by a certain date; and a tax lease is a proof of ownership for a number of years when state law prohibits absolute sales for tax reasons. (All of these are tax titles given at a tax sale after a tax warrant has been issued for a tax foreclosure on a tax lien; see those words.)

Tax evasion See criminal tax fraud. Not tax avoidance.

482 Tax exempt(s)

Tax exempt(s) 1. Property (such as that belonging to schools, churches, etc.) that is not subject to property taxation. 2. Investments (such as municipal bonds) that give income that is not subject to (in this case, federal) income taxation. 3. Income that is free from taxation, such as income received by a charitable organization. 4. See nonprofit organization.

Tax ferret A person who searches out property that has not been taxed (for a state fee) or who turns in tax cheaters (for a percentage of the tax recovered).

Tax fraud The deliberate nonpayment or underpayment of taxes that are legally due. Tax fraud can be civil or criminal, with criminal fraud

(“tax evasion”) having higher fines and the possibility of a prison sentence upon the showing of “willfulness.” The line between the two types of fraud is blurred.

Tax haven A place that attracts foreign investment because of low or nonexistent taxes.

Tax home That base of business operations from which, if you travel on business, travel expenses may be deducted from taxes as business expenses.

Tax preference items Certain income, credits, deductions, etc., that may give certain high-income persons and organizations very low taxes. The alternative minimum tax is imposed on these items.

Tax rate The percentage of taxable income (or of inherited money, things purchased subject to sales tax, etc.) paid in taxes. For income tax, the percentage that must be paid within a specific tax bracket.

Tax return The form used to report income, deductions, etc., and to accompany tax payments and requests for refunds.

Tax stamp See revenue stamp. Tax (taxable) year See fiscal year.

Taxable estate (or gift) The property of a dead person (or a gift) that will be taxed after subtracting for allowable expenses, deductions, and exclusions.

Taxable income Under federal tax law, this is either the “gross income” of businesses or the “adjusted gross income” of individuals (see those words) minus deductions and exemptions (see those words). It is the income against which tax rates are applied to compute tax paid before any credits are subtracted.

Taxing costs Making one side in a lawsuit pay the other side’s costs of the suit. This is sometimes required, sometimes forbidden, and sometimes at the judge’s discretion.

Tender years doctrine 483

Taxpayer suit A lawsuit brought by an individual to challenge the spending of public money for a particular purpose.

Teaser rate A low initial interest rate on a loan that is soon replaced by a much higher rate.

Technical 1. Having to do with an art or a profession. Technical terms are often called “words of art.” 2. Minor; merely procedural. For example, technical errors are mistakes in trial procedure that cause no real harm to either side.

Technical analysis Deciding whether to buy or sell a particular stock or other security based on its price and its sales patterns. Compare with fundamental analysis.

Teller A person whose duties include counting money (a bank teller), counting votes (a legislative vote teller), or counting other things.

Temporary restraining order A judge’s order to a person to not take a certain action during the period prior to a full hearing on the rightfulness of the action. Abbreviated T.R.O.

Tenancy The condition of being a tenant; the interest a tenant has; the term (amount of time) a tenant has. See tenant.

Tenant 1. A person who holds land or a building by renting. A tenant at will has a lease that can be terminated at any time (“at will”) by either the tenant or the landlord. A tenant by sufferance is a person who wrongly stays in property after the lease has expired. This is not a true tenant. 2. A person who holds land or a building by any legal right including ownership. For example, tenants in common each hold a share of land that can be passed on to heirs or otherwise disposed of; joint tenants are like tenants in common except that they must also have equal interests in the property and, if one dies, that person’s ownership interest passes to the other owner(s); and tenants by the entireties are like joint tenants except that they must also be husband and wife and that neither has a share of the land, but both hold the entire land as one individual owner. Different states vary these definitions slightly.

Tender 1. An offer, combined with a readiness to do what is offered. 2. An offer of money. 3. “Cash on the line.” Actually putting money forward, as opposed to merely offering it. In this sense, U.S. cash is legal tender in the U.S. 4. A tender offer is an offer (usually public) to buy a certain amount of a company’s stock at a set price. This is often done to get control of the company.

Tender years doctrine The principle, used in some courts, that in a custody dispute the custody of a very young child should be given to the mother unless the mother is unfit.

484 Tenement

Tenement 1. Any house, apartment, or place where people live. 2. A particular kind of living place, such as an apartment house. The word may be defined differently by different statutes or regulations. 3. In its original sense, anything that could be held, including offices, rights, etc., but especially an estate in land.

Ten-K (10-K) The annual report required by the S.E.C. of publicly held corporations that sell stock.

Tenor A vague word that can mean anything from “the exact words” to “the general meaning” or “train of thought.”

Tentative trust A Totten trust.

Tenth Amendment The U.S. constitutional amendment that says all powers not specifically given to the federal government are kept by the states and the people.

Tenure 1. Term of office. The length of time (“four years,” “life and good behavior,” etc.) a person may hold a job. 2. A right to lifetime employment, subject to specific restrictions. 3. The feudal law right to hold property as a subject of a higher lord.

Term 1. A word or phrase (especially a “term of art,” one that has a fixed technical meaning). 2. A fixed period; the length of time set for something to happen. For example: a term of court is the time period in which the court may hear cases (hold sessions); a term loan is a bank loan for a specific time period over a year; and a lease or jail term is how long each lasts. 3. A part of an agreement that deals with a particular subject; for example, a price term. 4. For term bonds and term insurance, see those words.

Termination Any ending; an ending before the anticipated end; an ending as specifically defined under some law. For example, under the

Uniform Commercial Code, termination marks the end of a contract without its being broken by either side.

Terra (Latin) Land.

Territorial 1. Having to do with a particular country. For example, territorial waters are inland waterways and the oceans surrounding a country. These waters “belong” to the country out to a certain distance. 2. Having to do with a particular area. For example, territorial jurisdiction is the power of a court to take cases from within a particular geographical area.

Territorial courts Courts in each U.S. territory, such as the U.S. Virgin Islands. They serve as both federal and state courts.

Territory A general word meaning a geographical area, especially land that is administered by a country, but not a permanent part of that country or completely integrated into its governmental workings.

Theory of the case 485

Terry v. Ohio (392 U.S. 1) The 1968 Supreme Court decision that a police officer may stop and frisk a person acting suspiciously (a “Terry stop.”)

Test case 1. A lawsuit brought to establish an important legal principle or right; or breaking a law to challenge it in court. 2. One case selected from many similar ones to be tried first, with all persons involved in the other cases agreeing to be bound by the decision. 3. An amicable action.

Test oath A loyalty oath.

Testacy (or testate) Having a valid will at time of death. Testate succession is the giving and receiving of property by a will.

Testament A will.

Testamentary Having to do with a will. For example, testamentary capacity is the mental ability needed to make a valid will; and a testamentary class is the group of persons who will eventually inherit from a will, especially when group size is not known.

Testator A person who makes a will.

Teste The statement in a document of the witnesses’ names and the fact that they are witnesses.

Testify Give evidence under oath.

Testimonium clause The part of a deed or other document that contains who signed and when and where it was signed.

Testimony Evidence given by a witness under oath. This evidence is “testimonial” and is different from demonstrative evidence.

Testis (Latin) Witness.

Thayer theory See bursting bubble theory.

Theft Stealing of any kind. In many states, various common law crimes involving stealing, such as larceny and embezzlement, have been merged into a single offense called theft.

Theocracy Government by the dominant religious group in which church law is the highest law.

Theory of pleading doctrine The common law principle that a person must prove a case exactly as alleged in the pleadings to win the case. The doctrine is now of limited applicability because in modern practice pleadings may usually be amended to match the proof.

Theory of the case 1. An interpretation of facts and law that fits the facts of a case. It may be one of several theories based on the evidence or it may be the legal theory that properly explains the evidence. 2. The facts on which a case is based; the cause of action (see that word).

(thereafter, thereat, thereby, therein, thereof, thereto, theretofore, thereunder, thereupon, therewith, etc.), it is best left out of a sentence or replaced by the exact thing referred to.

Thin corporation A corporation that owes its shareholders so much money that the I.R.S. will treat some of the debt as equity and treat some of the debt payments as dividends, thus raising the owners’ taxes.

Thin market Very few items for sale or very few offers made for these items.

Third amendment The constitutional prohibition against quartering soldiers in private homes during peacetime without the owner’s permission.

Third degree 1. Illegal methods of interrogation to force a person to confess to a crime. 2. The third most serious form of a crime.

Third market Sale of stocks or other securities by a method other than sale through one of the established exchanges. This is also called “off-board ” and is sometimes done by institutional traders of large blocks of stock.

Third part (or one-third portion) See election no. 2.

Third party (or person) A person unconnected with a deal, lawsuit, or occurrence, but who may be affected by it. For example, a third party beneficiary is a person who is not part of a contract, but for whose direct benefit the contract was made. A third party complaint is a complaint brought by a defendant in a lawsuit against someone not in the lawsuit. It brings that person into the lawsuit because that person may be liable for all or part of what the plaintiff is trying to get from the defendant.

Thirteenth Amendment The U.S. constitutional amendment that abolished slavery and other forms of involuntary servitude.

Thirty-day letter An I.R.S. letter to a taxpayer stating a tax deficiency (or refusing a refund request) and explaining appeal rights.

Threat A communicated intent to harm another person by an illegal act. Threats against the president, threats of terrorism, threats using the mails, and certain other threats are federal crimes.

Timely 487

Three strikes law A criminal statute with a severe required punishment (such as life imprisonment) for a defendant’s third felony conviction (sometimes restricted to violent crimes and drug sales).

Three-judge court A federal trial court that hears a case using three judges (rather than the customary one judge or judge plus jury) because a federal statute requires it in the type of case being heard. Appeal from the judgment of a three-judge court goes directly to the U.S. Supreme Court.

Through bill A bill of lading for goods that will be carried in sequence by more than one shipper.

Throwback rule The principle that if the beneficiary of a trust receives income from the trust in excess of the trust’s income that year, and the trust has not in previous years paid out all of its income, the excess will be taxed to the beneficiary that year minus a credit for tax previously paid by the trust.

Ticket 1. A unified group or list of candidates, usually from one political party, with each candidate running for a different political office. 2. A traffic law violation notice. 3. A certificate showing a right (theater tickets, train tickets, lottery tickets, etc.).

Tie-in See tying in.

Tier A straight row of townships running East-West within a state on government maps. Compare with range. [pronounce: teer]

Time draft (or time bill or time loan) A draft (or bill or loan) payable at a certain time.

Time immemorial 1. Since before the memory of anyone now alive. 2. Since before any oral or written records on the subject.

Time is of the essence A phrase used in a contract to make timeliness of performing a contractual promise material, thus making a failure to do what is required by the time specified a breach (breaking) of the contract.

Time, place, or manner restriction Government restriction of when, where, or how a speech may be made or a group may assemble in public. The restriction does not violate First Amendment rights if it serves a legitimate government purpose, permits reasonable alternate speech or assembly, and does not restrict the subject matter.

Time-barred Prohibited by a statute of limitations. (See limitation.)

Timely Done within the required or promised time. A timely suit is one that is brought to court soon enough to be valid (for example, within the time specified by a statute of limitations).