Joseph E. Tierney IV
President and Shareholder

Location: Milwaukee
T: 414.225.1471
F: 414.278.3671
111 E. Kilbourn Avenue, Suite 1400
Milwaukee, WI 53202-6613

Publications: Attorney Joseph E. Tierney IV

  • Bringing On Investors: Using Private Placement Memoranda Can Reduce Risks of Personal Liability

    April 5, 2018

    Under state and federal securities laws, owners and managers of companies raising capital through sale securities (e.g., stock or membership interests in companies) can be personally liable for material misrepresentations and omissions in any description of the business or investment. To reduce the likelihood of any personal liability, companies selling securities should utilize a private placement memorandum (a “PPM”). A PPM provides companies (and their ownership and management) with proof that no material misrepresentations or omissions were made in connection with the sale of the securities, allowing such companies to counter any fraud claim brought by an unhappy investor. An investment...

  • Purchasing LLC Membership Interests vs. Real Estate: Pros and Cons

    December 6, 2017

    When a real estate transaction closes in Wisconsin there is a transfer fee that must be paid to the State of Wisconsin which is equal to 0.3% of the purchase price. Additionally, the sale price is factored into the assessed value of the real estate. Unfortunately, this often means that after purchasing real estate, the property taxes owed for the following tax year will be more than in the year the property was purchased. One way to avoid these additional costs is to purchase all of the membership interests of the limited liability company (LLC) that holds the real estate. This...

  • CAM Reconciliation: Landlord Considerations for Common Area Maintenance Fee Provisions

    February 16, 2017

    The treatment of Common Area Maintenance (CAM) fees is often a point of contention for landlords and tenants alike. Landlord-tenant CAM reconciliation for retail leases often occurs shortly after the first of the year. As 2017 is underway, it is important for landlords to consider how to best address CAM fee reconciliation and agreements to minimize their own operating costs without harming the tenant’s ability to generate profit. Traditionally, a commercial lease includes a CAM fee provision that is structured on a pro rata basis, which is often determined by dividing the leasable floor area of the premises by the tenant’s...

  • Potential Relief Looms for Bankers and Developers from the Basel III HVCRE Requirements

    October 3, 2016

    Since the 2008 financial crisis, federal financial regulators have tightened their requirements for capital and liquidity for lenders. Concerns about underwriting standards that led to the mortgage bubble and collapse led to new, stricter risk weighting levels for lenders in certain loan categories under Basel III rules. Designed to increase capital reserves at financial institutions, the long term effect has actually dampened liquidity in the Commercial Real Estate sector, especially for new development loans. Current Basel III rules expanded from only the largest banks to all banks on January 1, 2015. Now all federally regulated institutions must identify which of its...

  • Landlords, Retailers and Restaurateurs Should Evaluate the Safe Harbor and Final Repair Regulations

    August 24, 2016

    The treatment of remodeling and repair costs has long been an area of controversy between the Internal Revenue Service (IRS) and restaurant owners, retailers, and even landlords. A retailer seeking to remodel its premises to refresh its brand or a restaurant owner seeking to refresh its floor and décor faced a significant risk of challenge from the IRS if they did not carefully analyze and account for the costs of such changes. Generally speaking, the taxpayers are seeking to deduct the costs associated with remodeling, repairing or refreshing their premises under Section 162(a) of the Internal Revenue Code while the IRS...

  • Real Estate Attorney Joe Tierney Discusses Tax Incremental Financing districts (TID) in New North B2B Publication

    March 1, 2016

    Joseph Tierney of Davis & Kuelthau’s corporate, construction and real estate teams authored an article, The Shrinking TID May Be Coming, for New North B2B's March 2016 publication. To read the article, please click here....

  • The Shrinking TID May Be Coming

    February 9, 2016

    On January 22, 2016, Senator Petrowski and Representative Spiros introduced 2015 Senate Bill 606 (“SB 606”) amending certain aspects of the law governing tax incremental financing districts (collectively, “TIDs” or singularly, a“TID”). SB 606 provides that an amendment to a TID’s project plan that only subtracts territory from a TID would not count against the current limit of four amendments over the life of the TID. Additionally, an amendment which only subtracts territory from a TID would not be subject to the “12 percent” test which requires the adoption of a resolution finding that the equalized value of the taxable...

  • Wisconsin’s Controlled Highway Access – Property Owners and Developers Beware

    February 9, 2016

    For those who own property abutting a highway or are thinking of developing in such a zone, a recent Supreme Court decision may impact your right to compensation should the Wisconsin Department of Transportation (“DOT”) ever need direct access to a portion of your property. The ability to demonstrate a notable deprivation of the beneficial use of the property will be critical. In an opinion decided on February 4, 2016, the Supreme Court of Wisconsin affirmed an unpublished Court of Appeals case which stood for the proposition that the DOT does not have to compensate an owner of property when...

  • Increase in Safe Harbor Expense Threshold Creates Opportunity for Small and Medium-Sized Businesses

    December 3, 2015

    With the release of Notice 2015-82, the IRS has provided a valuable end of year tax-planning tool to businesses looking to expense tangible property purchases. The tangible property regulations have been in effect since January 1, 2014. The regulations included a safe harbor under which businesses may expense, rather than capitalize, certain tangible property. One such example would be the cost associated with computers and other technological hardware, but would not include any software or other intangible expenses. The safe harbor is intended to both ease taxpayer compliance and reduce a business’s administrative burden. Notice 2015-82 raises the safe harbor from $500...

  • Businesses Can Lower Domain Name Acquisition Costs Via Amortization

    November 19, 2015

    The IRS recently concluded that certain domain names have to be capitalized as intangible assets and amortized over a 15-year period under Section 197 of the Internal Revenue Code. This means that a business that acquires qualifying internet domain names will be able to realize financial benefits by recapturing 100% of the purchase price through amortization, but will not be able to immediately expense the acquisition. Because domain names are valuable business assets and often command significant prices when purchased and sold on the secondary market, this guidance will enable business owners to substantially reduce the applicable net acquisition costs. For a...

  • Table of Experts: The Benefits of Design-Build

    June 17, 2015

    D&K's Real Estate practice chair, Joseph E. Tierney, recently sat down with D. Phillip Corbin of J. F. Ahern and Craig Coursin of MSI General Corporation to discuss the benefits of what's trending within design-build. Their commentary was featured in the Milwaukee Business Journal's Table of Experts column on June 12, 2015. Why use a design-build firm? What should you look for when selecting a design-build firm? What types of projects are best-suited for this approach? What’s the difference between a DBIA and AIA contract? Click here to read the full article....

  • Is Your Estate Plan Jeopardizing your S-Corporation?

    June 1, 2015

    Many of us are familiar with the basic S-corporation mantra – avoid the so-called double taxation of regular C-corporations, all while maintaining the limited liability and practical advantages of a corporation. While many business owners engage in detailed planning to ensure compliance with Subchapter S of the Internal Revenue Code in order to maximize the tax benefits of being an S-corporation, the same level of diligence is often ignored when it comes to that business owner’s personal estate plan, and ultimately, their business succession plan. For a corporation to maintain its S-corporation eligibility, it must have fewer than 100 total shareholders,...

  • Considering a Condominium for Your Development Project? Benefits vs. Drawbacks.

    March 26, 2015

    As medical office, multi-family, retail, and mixed-use development continues to remain strong throughout southeastern Wisconsin, developers should keep in mind the potential benefits and drawbacks of structuring their projects as condominiums. Skillful drafting at the outset of your condominium project can impact a number of key issues facing developers such as ownership, financing, and design. The ability to sell condominium units to tenants or investors – instead of being tied to lengthy lease terms in normal developments – offers a quicker turn of your investment, allowing you to move on to other projects. With respect to financing, carefully drafting the release...

  • Businesses Defer Tax Liability On Property Transactions, § 1031 Like-Kind Exchanges Regain Popularity

    February 12, 2015

    In today’s high-tax environment, many individuals and business owners are seeking renewed tax strategies when expanding their businesses and investments. Hence the recent uptick in the number of tax-deferred exchanges under Section 1031 of the Internal Revenue Code (“IRC”) being completed. The increased volume of § 1031 exchanges is attributable to a number of factors including: 1) the need for businesses to expand as the economy continues to improve; 2) the increase in property values since the Great Recession; 3) an increase in financing availability; and most significantly, 4) the increase in the capital gains tax rate as well as...

  • Completed Contract Decision Gives Developers Wide Latitude

    March 17, 2014

    The United States Tax Court recently decided in the taxpayer's favor in a matter pertaining to the taxpayer's interpretation of the completed contract method of accounting. Under this method, profits from the sale of homes are deferred until the tax year when the builder has incurred 95% of the project’s total cost. In addition, the Tax Court agreed with the taxpayer that the construction contracts consisted of not only the dwelling units, but also the lots and improvements. The IRS argued that the completed contract method should apply to each home to satisfy the final completion and acceptance test...

  • When is a Win a Win?

    September 1, 2011

    A recent State of Wisconsin Court of Appeals case, Falk v. Droegkamp Sales & Service (App Case. No. 2010AP001468, August 17, 2011) focused on a very typical contract provision known as a "prevailing party" clause and whether either party "prevailed". The real lessons from this case appear to be (a) that parties should be careful when expanding the claims in a case; and (b) that the prevailing party language typically used has some inherent ambiguities. In many contracts, the parties insert a provision that, generally speaking, states that if there is a suit between the parties, the "prevailing party" will have...

  • Licensing A Trademark - Even To A Family Member

    May 11, 2011

    In a case that came down earlier this month, the Court of Appeals for the Seventh Circuit reiterated an old saw of trademark law, namely, that trademark owners who fail to control the quality of their licensee’s goods or services stand to lose their trademark. Trademark law requires that decision-making authority over the quality of the goods or services provided remains with the owner of the mark. Why is this important? As happened in Eva’s Bridal Ltd. v. Halanick Enterprises, Inc., to the extent a trademark owner fails to include such provisions in a license agreement or fails to have a...

  • Are Your Public Deposits Insured?

    April 7, 2009

    How much money is in your district’s bank accounts? Is all of it covered by deposit insurance if the bank were to fail?These questions had less importance to school districts when the banking industry enjoyed greater stability, and school districts could give precedence to other financial and banking objectives. Indeed, focusing on interest rates, bond ratings, and other issues may have been right for the times. With the current state of the banking industry, however, school districts should review their public deposits to make certain that funds are secured properly. You can’t afford to discover the answers to these questions...

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