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CITES BY TOPIC: presumption   (Site not responding. Last check: 2007-10-26) Every rebuttable presumption is either (a) a presumption affecting the burden of producing evidence or (b) a presumption affecting the burden of proof. Presumptions are used to relieve a party from having to actually prove the truth of the fact being presumed. To constitute such a presumption, a previous experience of the connection between the known and inferred facts is essential, of such a nature that as soon as the existence of the one is established, admitted or assumed, an inference as to the existence of the other arises, independently of any reasoning upon the subject. famguardian.org /TaxFreedom/CitesByTopic/presumption.htm   (6580 words)

Oregon Judicial Department - Publications According to petitioner, the rebuttable presumption had the effect of shifting the burden to the county to establish, by a preponderance of the evidence, that the use was not continuous. The nature of "rebuttable presumptions," she argues, is such that the burden shifts to the opponent--in this case, the county--to establish by a preponderance of evidence that there was no such continuity. ORS 215.130(10)(a) does not specify which theory of presumptions the legislature intended to implicate when it referred to the term "rebuttable presumption." Reference to the context of the enactment, however, makes it clear that, when the legislature uses the term "rebuttable presumption," it refers to the Morgan view of presumptions unless it specifically states otherwise. www.publications.ojd.state.or.us /A106968.htm   (1683 words)

[No title] A presumption is a standardized practice under which certain facts are held to call for uniform treatment with respect to their effect as proof of other facts and a rebuttable presumption is one under which the party against whom the presumption operates can always introduce proof in contradiction. shall create a rebuttable presumption that the injury or accident was substantially occasioned by the use of alcohol." It then provides that "An employee shall not be entitled to compensation unless it is proved by a preponderance of the evidence that the alcohol, illegal drugs, or. Appellant was then free of the presumption and left only with the burden of proving by a preponderance of the evidence that alcohol or drugs did not "substantially occasion" his on-the-job injury or accident. courts.state.ar.us /opinions/1996a/961223ca/ca96-94.txt   (2445 words)

Advocacy & Represenation - 1997 Legal Resources   (Site not responding. Last check: 2007-10-26) IRS guidance on the rebuttable presumption should be formulated with the objective of encouraging as many organizations as possible to meet the requirements of the presumption. AHA suggests that boards should be able to satisfy the procedural requirements of the rebuttable presumption by excluding the disqualified person from participation in the board's deliberation and decision with respect to a particular transaction. In the event a specific transaction may be approved by a manager pursuant to the exercise of discretion within guidelines or parameters established by the board, he or she must similarly not be related to or subject to the disqualified person's control. www.aha.org /aha/advocacy-grassroots/advocacy/legal/lib27.html   (3057 words)

LawKT.com: Law Firm Publications on Rebuttable Presumption The presumption of a tax avoidance purpose would be rebuttable by showing that the owner had undergone one of the events described in section 72(q)(2) (such as death, disability or apparently even attainment of age 59½) and possibly similar events such as divorce or loss of employment. Rebuttal of this presumption requires a showing that, at the time of the amendment, one skilled in the art could not reasonably be expected to have drafted a claim that would have literally encompassed the alleged equivalent. Rebuttable presumption The legislative history of §4958 made it clear that if a tax-exempt organization attempted to determine that its proposed compensation plan conformed to standards in the marketplace, the IRS would have the burden of proving the plan was unreasonable. www.lawkt.com /pubs/Rebuttable_Presumption.html   (14280 words)

WorldTradeLaw.net Discussion Forums - "Rebuttable Presumption" The most obvious example of a situation in which the presumption of nullification or impairment could be rebutted is in the area of a "procedural violation," such as where a violation of a notification requirement has been found. First, it is important to emphasize that any question of rebutting a presumption of nullification or impairment is closely tied to the facts of the particular case. As to the relationship of rebutting the presumption of nullification or impairment with the concept of "harmless error," we confess at the outset that we do not know a great deal about the application of this principle in the public international law arena. www.worldtradelaw.net /dcforum/DCForumID26/7.html   (1020 words)

ifeminists.com > editorial > In the Best Interest of the Children... A new legal term is creating debate across North America: the "rebuttable presumption of joint custody." It means family courts should presume that divorcing parents will equally share the legal and physical custody of children unless there is compelling reason to rule otherwise. PC feminist organizations, like NOW, claim that the rebuttable presumption of joint custody would cripple the current standard, which is "the best interests of the child." They claim the family court system blindly turns children over to abusive fathers. The rebuttable presumption of joint custody is in the best interests of children. www.ifeminists.net /introduction/editorials/2003/0701.html   (860 words)

Rebuttable Presumption of "n"egligence ypically, this approach states that the violation of a statute is presumptively an act which the trier of fact must conclude to be "n"egligent, unless such presumption is otherwise rebutted by evidence of some proper excuse or justification for violating the statutory standard of care. If no excuse is offered by the statutory violator, then this presumption of "n"egligence approach becomes identical in all material respects with the negligence per se approach whereby the jury is instructed that it must find "n"egligence. Thus, the procedural effect of the rebuttable presumption of "n"egligence approach to statutory violations is exactly the same as in the evidence of "n"egligence approach in every case where the statutory violator offers any evidence to justify or otherwise excuse an alleged statutory violation. www.samford.edu /schools/netlaw/Martin/torts1/nps/presumption.htm   (267 words)

[No title] The second group of criticisms concern the arguments that the presumption of doli incapax is unfair in practice because in some cases it may be impossible or difficult for the prosecution to bring the evidence necessary to rebut the presumption. The presumption of doli incapax is a recognition of the fundamental nature of childhood, that children are not naturally equipped with an ability to understand the wrongfulness of criminal acts but develop this gradually, at different and inconsistent rates. Firstly, the rebuttable nature of the presumption should be borne in mind and, secondly, there is no evidence that the presumption is in fact hindering prosecutions. www.murdoch.edu.au /elaw/issues/v10n3/crofts103.txt   (4655 words)

The Chronicle, 5/10/2001: Rebuttable Presumption Procedure is Key to Easy Intermediat Sanctions Compliance If these procedures are followed with respect to each disqualified person, then the organization is entitled to a rebuttable presumption that the compensation provided is reasonable. If your organization is careful in timely preparing the required documents, you will ensure that all four requirements of the rebuttable presumption safe harbor will be satisfied. The rebuttable presumption can also be obtained for property transfers to, or from, disqualified persons. www.philanthropy.com /free/update/2001/05/2001051401.htm   (1255 words)

Legal Updates That portion of the law provides that an employee's positive post-accident drug or alcohol test, or refusal to submit to a test, creates a rebuttable presumption that the employee was intoxicated and that the intoxication was the proximate cause of the accident. The dissenting judges opined that the rebuttable presumption does not violate the constitutional protections against unreasonable searches because it does not require employees to submit to drug testing. Instead, the presumption simply shifts the burden of proof regarding impairment and causation from the employer to the employee if the employee tests positive or refuses to be tested. www.drugfreeworkplace.org /legalupdate.htm   (503 words)

Q & A - Rebuttable Presumption of Joint Physical Custody A presumption of joint physical custody with near equal time addresses many of the barriers to fatherhood and allows both parents to be an active and responsible parent to their child, enabling the development of the parent relationship and bond that was established while parents were living together. That is why a rebuttable presumption for joint physical custody should be a primary consideration by the courts. A presumption of joint physical custody with substantially equal parenting time reduces the opportunity for parent alienation to occur in families-apart and empowers both parent to be on an equal level in the development and care of their children. sdsharedparent.tripod.com /kellyf1.htm   (7851 words)

279.44 Rebuttable presumption for used oil. The owner or operator may rebut the presumption by demonstrating that the used oil does not contain hazardous waste (for example, by using an analytical method from SW-846, Edition III, to show that the used oil does not contain significant concentrations of halogenated hazardous constituents listed in Appendix VIII of part 261 of this chapter). (1) The rebuttable presumption does not apply to metalworking oils/fluids containing chlorinated paraffins, if they are processed, through a tolling arrangement as described in §279.24(c), to reclaim metalworking oils/fluids. The rebuttable presumption does apply to used oils contaminated with CFCs that have been mixed with used oil from sources other than refrigeration units. www.setonresourcecenter.com /CFR/40CFR/P279_023.HTM   (346 words)

Comment Letter: IRS Immediate Sanctions for Tax-Exempt Organizations   (Site not responding. Last check: 2007-10-26) The definitions and criteria included in the proposed regulations for application of the rebuttable presumption appropriately recognize that today's exempt health care organizations are faced with the challenges of operating within a larger business environment that is highly complex and competitive. Administrative guidance on the rebuttable presumption should be formulated with the objective of allowing as many organizations as possible to meet the requirements of the presumption. An arrangement or transaction that is subsequently approved by the board's designees in accordance with those procedures shall be subject to the rebuttable presumption even though the governing body does not vote separately on the specific arrangement or transaction. aha.org /aha/advocacy-grassroots/advocacy/comment/1998/cl981102irs.html   (5260 words)

Rebuttable Presumption Definition - Adoption Glossary, Dictionary, Terms, Terminology Rebuttable Presumption: An assumption that is made in the law that will stand as a fact unless someone comes forward to contest it and prove otherwise. In the area of adoptions, it is most commonly used to "presume" that if a woman is married when she gives birth to a child, that her husband is its father. This "presumption" will stand as a legal fact unless it is contested and proven to be wrong. glossary.adoption.com /rebuttable-presumption.html   (244 words)

COF - Council on Foundations - Council - Rebuttable Presumption [Issue Paper] In publishing the final regulations to implement the intermediate sanctions rules, the Treasury Department set forth procedures known as the "rebuttable presumption" rules, which provide a presumption of reasonableness for any public charity that follows them. The compensation arrangement must be approved in advance (before any payment) by the governing body of the organization, which is composed entirely of individuals who do not have a conflict of interest with respect to the compensation arrangement. The governing body must adequately document the basis for its determination concurrently with making that determination (within 60 days of the decision or the date of the next meeting of the governing body, whichever is later). www.cof.org /Content/General/Display.cfm?contentID=1376   (468 words)

[No title] The Rebuttable Presumption is a force structure planning process that places all required military forces in the National Guard and Reserves unless an adequate rebuttal can be made that a specific military organization must be in the active component force to meet a clearly defined immediate national defense requirement. This presumption was first developed by the Senate Armed Services Committee staff in the 1980s and the Adjutants General believe if properly implemented it will serve the nation well into the 21st century. The Rebuttable Presumption is the Formula for Balance and PartnershipReady Reserve land forces cost substantially less than active forces; about 25 cents on the dollar compared to active forces. www.cdi.org /issues/NatlGuardRes/Rebut.html   (1664 words)

FastFacts # 3081 - Ohio Enacts Workers' Comp Rebuttable Presumption Law   (Site not responding. Last check: 2007-10-26) The new regulations, in ORC 4123.54, aims to curb substance abuse in the workplace, Under the new law, an employer may seek the disallowance of a workers' compensation claim filed by an injured worker if the employee tests positive for alcohol or specified controlled substances (drugs). Simply put, under rebuttable presumption, if an employee tests positive or refuses to be tested, the burden of proof shifts to the employee to prove that the presence of alcohol or drugs was not the proximate cause of the work-related injury. As part of the legislation, the Ohio Bureau of Workers' Compensation will provide all employers with a written notice that must be posted and that will be on the bottom of an employer's certificate of coverage and must be the same size as or larger than the certificate. www.omeda.org /fastfacts/3081.htm   (387 words)

Current News   (Site not responding. Last check: 2007-10-26) This law puts the burden of proof on employees to prove that alcohol or drugs in their system were not the proximate cause of a workplace injury. Notice: Employers who wish to contest a workers' compensation claim must post notice that is no smaller than the certificate of coverage in the same location as the certificate. Rebuttable presumption cannot be applied to a claim unless the written notice was properly posted. www.ohiobwc.com /home/current/articles/2004/062004.asp   (364 words)

On the Contrary: A Rebuttable Presumption   (Site not responding. Last check: 2007-10-26) A person charged with a crime is presumed “innocent until proven guilty.” A defendant in a civil suit is presumed to be non-liable until the plaintiff proves negligence. In Wisconsin, for example, a person over 18 is presumed to have committed statutory rape for having sex with a person of 16 or 17 unless he can rebut that presumption by proving that the teen consented. In other words, we will establish for these inveterate prevaricators the rebuttable presumption that they are lying. webpages.charter.net /kurmudgeon/2005/11/rebuttable-presumption.html   (580 words)

Criminal Resource Manual 1036 24 Hours Rebuttable Presumption   (Site not responding. Last check: 2007-10-26) The rebuttable presumption set forth in 18 U.S.C. § 1201(b) does not create a presumption of kidnapping. Rather, it creates a presumption of transportation in interstate or foreign commerce in cases where an actual kidnapping has been established. The presumption was added to the statute to give the FBI jurisdiction to investigate. www.usdoj.gov /usao/eousa/foia_reading_room/usam/title9/crm01036.htm   (88 words)

OSCN Found Document:Evidence of Domestic Abuse Considered - Rebuttable Presumption   (Site not responding. Last check: 2007-10-26) If the occurrence of ongoing domestic abuse is established by clear and convincing evidence, there shall be a rebuttable presumption that it is not in the best interests of the child to have custody, guardianship or unsupervised visitation granted to the abusive person; Evidence of child abuse as such term is defined by the Oklahoma Child Abuse Reporting and Prevention Act pursuant to this paragraph. There shall be a rebuttable presumption that it is not in the best interests of the child to have custody, guardianship or unsupervised visitation granted to a person who is: www.oscn.net /applications/oscn/deliverdocument.asp?citeID=71831   (432 words)

IS THE INCOME TAX LEGALLY ENFORCED Indeed, there may be a heavy presumption against validity where a right is explicitly secured by the constitution. A revenue tax on a constitutional right is summarily rejected: "A (government) may not impose a charge for the enjoyment of a right granted by the federal constitution." Murdock v Pennsylvania, 319 US 105, 113 (1943). Taxes exacted as a price of exercising freedoms protected by the constitution are presumptively invalid for "on their face they are a restriction of the free exercise of those freedoms." id 114. www.civil-liberties.com /pages/taxillegallyenforced.htm   (17399 words)

Section 454-545 Rebuttable presumption for authenticity Rebuttable presumption for authenticity of certain judicial orders and documents. A person contesting the authenticity of the document may rebut the presumption with a certified copy. The clerk shall furnish the division with certified copies upon request and without charge. www.moga.state.mo.us /statutes/C400-499/4540000545.HTM   (40 words)

Institute for Family Violence Studies: Supervised Visitation State Laws, Washington   (Site not responding. Last check: 2007-10-26) If a parent resides with an adult or a juvenile who has been found to be a sexual predator under chapter 71.09 RCW or under an analogous statute of any other jurisdiction, the court shall restrain the parent from contact with the parent's child except contact that occurs outside that person's presence. (d) There is a rebuttable presumption that a parent who has been convicted as an adult of a sex offense listed in (d)(i) through (ix) of this subsection poses a present danger to a child. The court shall not approve of a supervisor for contact between the child and the parent unless the court finds, based on the evidence, that the supervisor is willing and capable of protecting the child from harm. familyvio.ssw.fsu.edu /statelaw/washington1.htm   (1389 words)

City Comforts, the blog: The "default position" is a rebuttable presumption City Comforts, the blog: The "default position" is a rebuttable presumption The Three Rules outline a "default position." In legal terms (and since we assume the continued existence of zoning etc etc., that's not an inconsiderable consideration) Rule #1 ("build to the sidewalk") is a "rebuttable presumption." That means that the expectation is that a building will adhere to a consistent streetfront. But if the developer wants, for his own reasons, to set back from the property line to create a plaza, the legal burden will be on him to show that such a deviation from the default position will create a successful pedestrian environment. citycomfortsblog.typepad.com /cities/2003/06/the_default_pos.html   (750 words)

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