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De minimis

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The country of Georgia has no legally recognized freedom of panorama, and a strict interpretation of copyright law makes commercial reproduction of a likeness of any modern Georgian building a likely copyright violation. However, a panorama of a Georgian city (here, Batumi), which does not focus on any building in detail, is likely allowed due to the de minimis principle.

De minimis is a legal doctrine by which a court refuses to consider trifling matters. The name of the doctrine is a Latin expression meaning "pertaining to minimal things" or "with trifles", normally in the terms de minimis non curat praetor ("The praetor does not concern himself with trifles") or de minimis non curat lex ("The law does not concern itself with trifles").[1][2] Queen Christina of Sweden (r. 1633–1654) favoured the similar Latin adage, aquila non capit muscās (the eagle does not catch flies).[3]

The legal history of de minimis dates back to the 15th century in the civil law, although there are earlier antecedents.[4] It was incorporated into David Dudley Field's Maxims of Jurisprudence of New York by the 1800s which was later exported by migrants such as John Chilton Burch to newer states such as California[5][6] by the 1870s and Montana[7] by the 1890s—as well as to other states such as North Dakota.[8]

The general term has come to have a variety of specialized meanings in various contexts as shown below, which indicate that beneath a certain low level a quantity is regarded as trivial, and treated commensurately.

Examples of application of the de minimis rule

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Taxation

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Under U.S. tax rules, the de minimis rule governs the treatment of small amounts of market discount. Under the rule, if a bond is purchased with a small amount of market discount (an amount less than 0.25% of the face value of a bond times the number of complete years between the bond's acquisition date and its maturity date) the market discount is considered to be zero and the discount on the bond will be considered to be a capital gain upon the bond's disposition or redemption rather than ordinary income.[9] Under Internal Revenue Service guidelines, the de minimis rule can also apply to any benefit, property, or service provided to an employee that has so little value that reporting for it would be unreasonable or administratively impracticable; for example, use of a company photocopier to copy personal documents – see de minimis fringe benefit. Cash is not excludable, regardless of the amount.[10]

Specifically in U.S. State income tax, de minimis refers to the point at which withholdings should be initiated for a nonresident working in a state which taxes personal income. Not all U.S. states levy income taxes, and there is little consistency among nonresident de minimis standards for those that do. Some states base de minimis on the number of days worked (although the definition of what counts as a workday has been controversial[11]), others on the dollars earned or a percentage of total income derived from work in the state, still others using a combination of methods. These inconsistencies have led to repeated attempts to pass the so-called Mobile Workforce State Income Tax Simplification Act[12] without success.

European Union usage

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According to European Union regulations, de minimis "state aid" is any amount of aid up to the de minimis ceiling of €200,000 provided from state funds to a business enterprise over a rolling three-year period. For businesses in the land transport sector, the de minimis ceiling is €100,000. If a business receives more than the de minimis ceiling amount of aid, it is subject to a different set of regulations.[13]

Under European Union competition law, some agreements infringing Article 101(1) of the Treaty on the Functioning of the European Union (formerly Article 81(1) of the EC Treaty) are considered to be de minimis and therefore accepted. Horizontal agreement, that is one between competitors, will usually be de minimis where the parties' market share is 10% or less, and a vertical agreement, between undertakings operating at different levels of the market, where it is 15% or less.[14]

Procurement of low value contracts is subject to limited regulation when its value falls below certain low thresholds.[15]

Criminology and crime

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In criminology, the de minimis or minimalist approach is an addition to a general harm principle. The general harm principle fails to consider the possibility of other sanctions to prevent harm, and the effectiveness of criminalization as a chosen option. Those other sanctions include civil courts, laws of tort and regulation. Having criminal remedies in place is seen as a "last resort" since such actions often infringe personal liberties – incarceration, for example, prevents the freedom of movement. In this sense, law making that places a greater emphasis on human rights, such as the European Convention on Human Rights, falls into the de minimis category. Most crimes of direct action (murder, rape, assault, for example) are generally not affected by such a stance, but do require greater justification in less clear cases.[16]

The de minimis rule in North American drug law requires a usable quantity of the substance in question before charges can be brought, known as the minority rule.[17]

In Canada, de minimis is often used as a standard of whether a criminal offence is made out at a preliminary stage. For a charge of second degree murder, the test being: "could the jury reasonably conclude that accused actions were a contributing cause, beyond de minimis, of the victim's death."[18]

Risk assessment

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See also: materiality (auditing)

In risk assessment, it refers to the highest level of risk that is still too small to be concerned with. Therefore, only risk levels above this de minimis level must be addressed and managed. Some refer to this as a "virtually safe" level.[19] It has application in the fields of auditing, modeling, and engineering, and may refer to situations of low (negligible) risk. It can be verified in ASA 1.[clarification needed]

Charity tax deductions

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In Australia donations to charities are tax deductible if they equal or exceed $2, the amount that hasn't changed since decimal currency replace pounds, shilling and pence in 1966. $2 is equivalent to £1. Inflation has since rendered $2 trivial.

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This movie poster is likely subject to copyright and strict interpretation of copyright could argue that the image focuses on the poster too much, hence it has been censored in this image

Courts will occasionally not uphold a claim to copyright on modified public domain material if the changes are deemed to be de minimis.[20] Similarly, courts have dismissed copyright infringement cases on the grounds that the alleged infringer's use of the copyrighted work (such as sampling) was so insignificant as to be de minimis. For example, the NBA 2K video games that included copyrighted tattoos in the recreation of the players' likenesses were found to be in de minimis and not copyright-violating.[21] However, in Bridgeport Music, Inc. v. Dimension Films, such a ruling was overturned on appeal, the US appeals court explicitly declining to recognize a de minimis standard for digital sampling.[22] "De minimis" was also invoked in the Trevor Newton v. Beastie Boys copyright infringement lawsuit, where a 6-second sample of Newton's piece Choir was used in Pass the Mic; Newton lost the case.

In India

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The principle of de minimis non curat lex can be used as defense in India in cases of copyright infringement. The important issue is that whether de minimis principle could be used as separate defence than fair use under section 52 of Indian Copyright Act. In India TV Independent News Service Pvt. Ltd. and Ors. v Yashraj Films Pvt. Ltd., the court discussed the applicability of de minimis principle at length. Before this case the position was not very clear with regard to the applicability. The facts of the case were that five words were copied from a song of five stanzas. After applying the five well-known factors commonly considered by courts in applying de minimis, the court reached the conclusion that the infraction is trivial and attracts the defence of de minimis.[23][24][25]

Duties and taxes on imports

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The de minimis threshold is the value of a shipment that can be imported without payment of custom duties (import tariffs) or taxes (such as the value-added tax in the EU). In the United States, the de minimis import threshold is $800 per person per day.[26] The exemption was raised from $200 in 2016 to facilitate trade and to save on enforcement costs.[27] The U.S. has one of the highest de minimis levels in the world. By comparison, the duty-free threshold is $673 in Australia, $166 in the EU, and $71 in Japan (measured in U.S. dollars).[28]

In September 2024, the U.S. took executive action following an "exponential" increase in the number of de minimis shipments over the previous decade, from approximately 140 million to over one billion a year.[29] New regulations require additional data (such as the identity of the person claiming the exemption, and the 10-digit tariff classification number), and exclude products subject to tariffs under Sections 201 (mostly solar panels), 232 (steel/aluminum), and 301 (includes textiles, apparel and footwear).[28][30][29] The surge in de minimis shipments was largely attributed to e-commerce platforms, particularly those based in China such as Shein and Temu, which ship directly to U.S. consumers.[29][31] Shein and Temu are likely responsible for more than 30% of all packages shipped to the U.S. daily under the de minimis provision, and their shipments could be greatly reduced since Section 301 tariffs cover approximately 70% of textile and apparel imports from China.[29][30] According to a congressional report, Shein and Temu paid no import duties in 2022, while bricks-and-mortar rivals H&M and Gap paid $205 million and $700 million, respectively.[27][30]

Other countries are reviewing their tax and duty-free exemptions so as to avoid providing an advantage to low-value imports. For example, the European Union and South Africa have proposed the elimination of duty-free de minimis exemptions.[28][32] Since 2021, there has been no de minimis exemption for imports from value-added tax in the EU.[33]: 2  [34]

Planning

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In environmental planning in New Zealand, the use of the term 'de minimis' is common in the legal and planning professions. While not defined under the Resource Management Act 1991, it is commonly used in case law in relation to an assessment of environmental effect, e.g. "the potential adverse effect of one additional road user on the crossing is considered to be de minimis." It is used when an actual or potential effect may exist, but is so minor it is close to negligible or zero in nature.

Education

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In Endrew v. Douglas County School District, the U.S. Supreme Court unanimously ruled, on March 22, 2017, that the Individuals with Disabilities Education Act (IDEA) requires more than de minimis efforts to provide equivalent educational opportunity to students with disabilities.[35] The decision reversed a previous decision by the U.S. Court of Appeals for the Tenth Circuit.

Logistics

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A de minimis threshold is a value set by a country to apply customs duty and tax rates on imported goods. De minimis refers to the minimum value of the goods below which no duties and taxes are collected by the Customs. The low-value of such items makes it counterproductive to apply normal customs procedures. The threshold varies from country to country. In addition, some countries do not have a de minimis rule, so everything gets taxed; other countries do not have customs duties, so nothing gets taxed.[36]

Christian theology

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The principle of de minimis non curat Lex has been commonly used in defence of the historical reliability of the Gospels. F. W. Upham used the term when speaking of "the [...] minor differences that make up the larger part of the current argument against the Gospels."[37] Simon Greenleaf's Testimony of the Evangelists is perhaps the most famous application of legal rules to the Christian Gospels.

Miscellaneous examples

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Following bus deregulation in Great Britain in 1986, small contracts for supplementary local bus services could be let by local authorities without competitive tendering. The Department for Transport's "Guidance on New De Minimis Rules for Bus Subsidy Contracts" (2005) notes that "The Transport Act 1985 (as amended by the 2000 Transport Act) introduced the provisions which govern the duties of local passenger transport authorities to secure local bus services where these would not otherwise be met. In the majority of cases these services have to be secured through competitive tender. The Service Subsidy Agreements (Tendering) Regulations provided local authorities with the scope to let any individual bus subsidy contract in any one year up to a certain maximum value without the need to competitively tender (the de minimis limits). There was also a maximum value that de minimis contracts could be let with any one operator in any one year."[38]

Under the de minimis provision of the World Trade Organization's Agreement on Agriculture there is no requirement to cap trade-distorting domestic support in any year during which the value of support does not exceed a certain percentage (5–10%) of the national production value per product or of all products taken together if the support is not attributable to any specific product category.[citation needed]

See also

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References

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  1. ^ Ehrlich, Eugene (1987) [1985]. Amo, Amas, Amat and More. New York: Harper Row. p. 100. ISBN 978-0-06-272017-7.
  2. ^ Garner, Bryan A., ed. (1999). Black's Law Dictionary (7th ed.). St. Paul, Minnesota: West Publishing. p. 443. ISBN 0-314-22864-0.
  3. ^ Walter Keating Kelly (1869), A Collection of the Proverbs of All Nations
  4. ^ Max L. Veech & Charles R. Moon, "De Minimis Non Curat Lex", 45 Michigan Law Review. 537, 538 (1947) (quoting Thomas Branch, Principia Legis et Æquitatis 36 (William Waller Hening ed., T. H. White, 4th London ed. 1824) and citing Bracton, De Legibus, for early English history)
  5. ^ ""California Civil Code — Maxims of Jurisprudence § 3533"". State of California. The law disregards trifles...(Enacted 1872.)
  6. ^ Haymond, Creed; Burch, John C. (1871). "Revised laws of the State of California". {{cite book}}: |work= ignored (help) see also: Based on David Dudley Field's New York Field Codes, these volumes comprise the proposed code of laws for the state of California
  7. ^ ""Montana Code — Maxims of Jurisprudence § 1-3-224". State of Montana. Trifles. The law disregards trifles. History: En. Sec. 4624, Civ. C. 1895...
  8. ^ ""North Dakota Code — Maxims of Jurisprudence § 31-11-05(24)" (PDF). State of North Dakota. The law disregards trifles
  9. ^ "About Municipal Bonds". Investing in Bonds. Securities Industry and Financial Markets Association. 2013. Archived from the original on 18 May 2021.
  10. ^ Society for Human Resource Management De minimis rule Archived 2012-08-06 at the Wayback Machine Retrieved on 28 July 2007.
  11. ^ New York State Updates Guidance on 14-Day Withholding Threshold. Retrieved on 25 July 2012.
  12. ^ 114th Congress: HR 2315 / S 386. Retrieved on 14 September 2015.
  13. ^ "Commission Regulation (EC) No 1998/2006 of 15 December 2006 on the application of Articles 87 and 88 of the Treaty to de minimis aid". Retrieved 2019-11-20.
  14. ^ "Commission Notice on agreements of minor importance which do not appreciably restrict competition under Article 81(1) of the Treaty establishing the European Community (de minimis)" (PDF). Official Journal of the European Communities. 2001/C (368/07): 13–5. 2001-12-22. OCLC 52301298. Retrieved 2008-08-20.
  15. ^ Cheshire East Council, EU Procurement thresholds as at 1 January 2018, accessed 29 May 2018
  16. ^ Ashworth, Andrew (1999). Principles of Criminal Law (3 ed.). Oxford: Oxford University Press. p. 33. ISBN 978-0-19-876557-8.[need quotation to verify]
  17. ^ MacFarlane, Bruce A. (1986). "De minimis non curat lex". Drug offences in Canada. Canada Law Book. p. 565. ISBN 978-0-88804-032-9.
  18. ^ "R. v. J.S.R. (a young person), 2008 ONCA 544". canlii.org. Canadian Legal Information Institute. 7 July 2008.
  19. ^ "Toxicology Glossary – Risk De minimis". National Library of Medicine. Archived from the original on 2007-08-27. Retrieved 14 July 2007.
  20. ^ Webbink, M.; Johnny, O.; Miller, M. (2010). "Copyright in Open Source Software – Understanding the Boundaries". International Free and Open Source Software Law Review. 2 (1). doi:10.5033/ifosslr.v2i1.30.
  21. ^ Gardner, Eriq (March 29, 2020). "'NBA 2K' Publisher Beats Copyright Suit Over LeBron James' Tattoos". The Hollywood Reporter. Retrieved March 29, 2020.
  22. ^ Heins, Marjorie (2004-09-21). "Trashing the Copyright Balance". The Free Expression Policy Project.
  23. ^ Andrew Inest, "A Theory of De Minimis and a Proposal for Its Application in Copyright", 21 Berkeley Technology Law Journal, 945 (2006)
  24. ^ "Is It Fair (Use)? De Minimis As Defense In Copyright Infringement". IR Global. 2020-08-14. Retrieved 2021-04-08.
  25. ^ Interns, Intepat (2020-07-29). "The Role of De Minimis in Copyright Law". Intepat IP. Retrieved 2021-04-08.
  26. ^ "De Minimis Value Increases to $800 | U.S. Customs and Border Protection". www.cbp.gov. Retrieved 2024-09-14.
  27. ^ a b "How Chinese goods dodge American tariffs: Policymakers are unsure what to do about a tricky loophole". The Economist. 27 June 2024.
  28. ^ a b c "US moves to crack down on de minimis shipments". Economist Intelligence Unit. 19 September 2024.
  29. ^ a b c d The White House (13 September 2024). "FACT SHEET: Biden-Harris Administration Announces New Actions to Protect American Consumers, Workers, and Businesses by Cracking Down on De Minimis Shipments with Unsafe, Unfairly Traded Products". The White House. Retrieved 14 October 2024.
  30. ^ a b c Nova, Annie; Fonrouge, Gabrielle (13 September 2024). "Biden targets Shein, Temu with new rules to curb alleged 'abuse' of U.S. trade loophole". CNBC. Retrieved 14 September 2024.
  31. ^ askstraight (2024-09-14). "Biden Targets Shein and Temu to Close Trade Loophole Abuse". askstraight.com. Retrieved 2024-09-14.
  32. ^ Nardelli, Alberto (3 July 2024). "EU to Consider Closing Off Duty Exemption That Aids Shein, Temu". Bloomberg.
  33. ^ "New VAT e-commerce rules as of 1 July 2021" (PDF). Loyens & Loeff. Retrieved 31 October 2024.
  34. ^ "Customs formalities for low value consignments: New VAT and customs e-commerce rules for the import of low value consignments as of 1 July 2021". European Commission: Business, Economy, Euro; Taxation and Customs Union. Retrieved 31 October 2024.
  35. ^ Endrew vs. Douglas County School District
  36. ^ "Brief understanding of Deminimis values". Forwardvia. Retrieved 2022-07-12.
  37. ^ Upham, Francis William (1881). Thoughts on the Holy Gospels: How They Came to be in Manner and Form as They are. Phillips & Hunt. pp. 139–140.
  38. ^ "Guidance on New De Minimis Rules for Bus Subsidy Contracts". Department for Transport. 22 June 2005. Archived from the original on 7 November 2012.
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  • The dictionary definition of de minimis non curat lex at Wiktionary
  • Media related to De minimis at Wikimedia Commons
  • Wilde, Larry (1982). The Official Lawyers Joke Book. Bantam. p. 20. ISBN 9780553201116. Limerick: There was a young lawyer named Rex / Who was sadly deficient in sex. / Arraigned for exposure / He said with composure, / 'De minimis non curat lex.'
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