response to storing records / comment on military sub's right to cancel / comment on sales tax July 24, 2018

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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response to storing records / comment on military sub's right to cancel / comment on sales tax
July 24, 2018
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response to storing records from July 13, 2018 article
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Ken,
    In response to record storage from July 13th, 2018, you stated "six years would be safe", but the question had an important element that you did not address in plain language, which was "after projects are completed"
    From my role as the defender of alarm companies once a claim is submitted after a loss, this is a critical area that your readers need to not only understand but accept as an absolute requirement for conducting their business and helping me (or you) protect them.
    When is a project completed? Answer the day that the expectation of revenue ceases! If you have a customer that has no RMR or RAR (annual), but does call from time to time for a service call (which you MUST have a T&M contract with) the answer is that the six year clock starts every time you visit, touch OR collect compensation for providing a service. Even if it is a convenience store or a deli and you adjust a camera, you touched it. Restart the clock. 
    I had a client that had a claim from a TV/video monitor (Samsung) that caught fire in a convenience store that he bought at Costco and plugged in for the store he stops in everyday for lunch. This is where doing someone a favor just does not pay nor is it worth a free lunch that day plus the reimbursement from the Costco receipt. 
Anything that you put in the customers file, besides the contract can always be helpful, even scribbled notes.
    All to often do our industry companies believe that if you don't get paid you have no liability, NOT TRUE. I have had claims of over 11 million dollars expressed by plaintiffs or their attorneys and they are all for real. The simple rule is if you touch it, you own the liability. So how do you protect yourself and your company, if you don't have a executed contract (not a proposal, but a KK ESQ contract), no installation, no monitoring, no service. If you don't have a executed T&M agreement, no system review and no service call. Good guys finish broke and without a company. The longer you are in business the better the chances you will be sued. Its like driving a car, if you don't drive you won't have an accident, but if you do drive its only a matter off time. I which I 20 bucks every time a dealer called me and said, "I have been in this business for 40+, or 33 or 25 years and this is my first claim and I did nothing wrong". I would have a stack of 20 dollar bills to say the least.
    Remember, six years from the last compensation received or when the T&M contract is cancelled, that is when the clock starts. 
Bart A. Didden, Executive Claims Manager 
Security America Reassurance Group, Inc. - SARG 
877-872-1266 
bdidden@securityamericarrg.com 
www.securityamericarrg.com
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comment on military sub's right to cancel from July 2018
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Ken
    I wish to respond to the Military issue here. Contracts are contracts (sometimes) and the law of contracts is the law of contracts. Offer, Acceptance, Consideration, Performance.
My opinion as a Viet Nam vet, 4 tours, and prior relatives that have fought in every war, or battle, all the way back to the first, Revolutionary War is as follows. Any person, who volunteers to wear the uniform, and be available to die, no questions, for our Country, and our Freedom should not be sued for breach of contracts for moving, dying, being transferred, nor anything else non-criminal. I would deprogram their panel from contacting the central station, shake their hand, wish them God’s speed and safety.
    Also. as a JD law degree person who owns an alarm company, the Law is Equal and Blind. But, our law would not be that if we did not have Brave men and women. Suing for breach, and clawing your monthly revenue out of them is un-patriotic, and you should be ashamed. But, it is your legal right, remember, others died for that right.
Tim
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comment on sales tax from June 26, 2018 article
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Ken
    In case of capital improvement in nys the contractor or installer either electrical or alarm pays the sales tax when they purchase the material (not resale cert) but they don’t add sales tax to the entire job as the labor is non taxable Definition of capital improvement is is the removal of the work will damage finished walks etc. example. If a-store purchases a rolling mirrored display that’s taxable. If the same store has mirrors installed by gluing onto the wall it’s capital improvement and tax is only paid on materials. If you purchase all your supplies with a resale certificate then you are responsible to include in your sale tax on the material portion(at your cost)and remit to the state. You must have a capital improvement cert signed you the owner and general contractor. 
    Ps. If system is leased and ownership never actually goes to owner it’s fully taxable and capital improvement won’t apply 
Scott Diamond
Electrical Solutions
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Ken
    We quote our security systems as installed and this avoids the equipment sales tax conundrum.
    While it is nice to list parts and labor separately, the parts will need to be taxed. If you sold someone a motion detector for them to install, it would require tax like any other counter sale.If you sell someone 1 motion detector installed, then sales tax is not required because installation was required for the device to function.This is a massage of the code but has worked for us for over 25 years and we were just audited last year for 2015 & 2016.I think another way to look at it could be that the alarm or surveillance components are required to be able to provide monitoring or other services which may be taxed....the components are useless without the other services. Does the cable company charge tax on the cable box? Maybe if it is leased, probably not if it is rented or provided but it is required for you to to receive their services, which are taxed. 
Ron Best
cei corp
Indiana
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Response
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      Careful with sales tax. Check with your accountant. If he hesitates, call Mitch Reitman.
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
516 747 6700
www.KirschenbaumEsq.com