Rodriguez v. FDIC ( 2020 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS May 26, 2020
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
In re: UNITED WESTERN BANCORP,
INC.,
Debtor.
------------------------------
SIMON E. RODRIGUEZ, in his capacity
as Chapter 7 Trustee for the bankruptcy
estate of United Western Bancorp, Inc.,
Plaintiff - Appellant,
v. No. 17-1281
FEDERAL DEPOSIT INSURANCE
CORPORATION, in its capacity as
Receiver for United Western Bank,
Defendant - Appellee.
_________________________________
On Remand from the United States Supreme Court
(S. Ct. No. 18-1269)
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:16-CV-02475-WJM)
_________________________________
Submitted on the briefs:*
Neal Kumar Katyal and Mitchell P. Reich, Hogan Lovells US LLP, Washington, DC;
Thomas P. Schmidt, Hogan Lovells US LLP, New York, New York; and Mark E.
Haynes, Ireland Stapleton Pryor & Pascoe, P.C., Denver, Colorado, for Appellants.
Colleen J. Boles, Assistant General Counsel, J. Scott Watson, Senior Counsel, and Joseph
Brooks, Counsel, Federal Deposit Insurance Corporation, Arlington, Virginia, for
Appellees.
_________________________________
Before BRISCOE, SEYMOUR, and HOLMES, Circuit Judges.
_________________________________
BRISCOE, Circuit Judge.
_________________________________
This matter is before us upon remand from the Supreme Court. See Rodriguez
v. Fed. Deposit Ins. Corp., ––– U.S. ––––, 140 S. Ct. 713, 206 L. Ed.2d 62 (2020).
Having ordered and considered supplemental briefing from the parties, we conclude,
applying Colorado state law, that the Federal Deposit Insurance Corporation (FDIC),
as receiver for United Western Bank (the Bank), is the owner of the federal tax
refund that gave rise to this adversary proceeding. Consequently, we affirm the
judgment of the district court and remand to the bankruptcy court for further
proceedings.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
2
I
Two entities claim ownership of the federal tax refund that lies at the heart of
this case. The first is United Western Bancorp, Inc. (UWBI). UWBI is a thrift
holding company that has filed for bankruptcy. UWBI’s bankruptcy estate is
overseen by bankruptcy trustee Simon Rodriguez. The second entity claiming
ownership of the tax refund is the Bank, which is a subsidiary of UWBI. The Bank
has also endured financial troubles and is currently in receivership overseen by the
FDIC.
In 2008, prior to their financial troubles, UWBI, the Bank, and UWBI’s other
affiliate subsidiaries entered into a Tax Allocation Agreement (the Agreement).
Under the terms of the Agreement, UWBI filed consolidated tax returns in 2008,
2009, and 2010 on behalf of itself and its subsidiaries. Although the 2008 return
reported positive net income, the 2009 and 2010 returns reported losses, the great
bulk of which were derived from net operating losses incurred by the Bank. UWBI
sought a loss-carryback from the Internal Revenue Service (IRS) to offset the 2009
and 2010 consolidated losses against the 2008 gains.
In 2011, the Bank was placed into receivership and UWBI filed for
bankruptcy. After UWBI filed for bankruptcy, the IRS issued UWBI a tax refund in
the amount of $4,081,334. The bankruptcy trustee and the FDIC both claimed
ownership of the refund.
3
II
The bankruptcy trustee initiated this adversary proceeding against the FDIC,
seeking a resolution of the dispute over the ownership of the tax refund. The
bankruptcy court entered summary judgment in favor of the trustee, concluding that
the tax refund was owned by UWBI and was thus part of the bankruptcy estate. The
FDIC appealed to the district court, which reversed the decision of the bankruptcy
court. The bankruptcy trustee then appealed to this court.
We agreed with the district court that the tax refund belonged to the Bank. In
arriving at this conclusion, we noted that the Tenth Circuit had previously adopted a
rule of federal common law, known as the Bob Richards rule, that held that, in the
absence of a tax allocation agreement that provides otherwise, “‘a tax refund due
from a joint return generally belongs to the company responsible for the losses that
form the basis of the refund.’”1 In re United Western Bancorp, Inc., 914 F.3d 1262,
1269 (10th Cir. 2019) (quoting Barnes v. Harris, 783 F.3d 1185, 1195 (10th Cir.
2015)). Applying this federal rule of common law, we examined the terms of the
Agreement to determine whether the Agreement “unambiguously addresse[d] how
tax refunds [we]re to be handled and, if so, whether it purport[ed] to deviate from the
general rule outlined in Barnes.” Id. at 1270. We “conclude[d] that the Agreement
create[d] an agency relationship between UWBI and the Bank and that, consequently,
1
The “Bob Richards rule” originated in a Ninth Circuit case of the same name.
See In re Bob Richards Chrysler-Plymouth Corp., Inc., 473 F.2d 262, 265 (9th Cir.
1973).
4
the Agreement’s intended treatment of tax refunds d[id] not differ from the general
rule outlined in Barnes.” Id. at 1274. “Therefore, we conclude[d] that the tax refund
at issue belong[ed] to the Bank, and that the FDIC, as receiver for the Bank, was
entitled to summary judgment in its favor.” Id.
The bankruptcy trustee filed a petition for writ of certiorari. The Supreme
Court granted review to determine the narrow question of whether the ownership
dispute over the tax refund should be resolved based upon federal common law, i.e.,
the Ninth Circuit’s Bob Richards rule that was adopted by this court in Barnes, or,
instead, upon “state law, together with any applicable federal rules.” Rodriguez, 140
S. Ct. at 716. More specifically, the Supreme Court, by its own admission, “took
th[e] case to decide Bob Richards’s fate.” Id. at 717. The Supreme Court, in
addressing this question, emphasized that “before federal judges may claim a new
area for common lawmaking, strict conditions must be satisfied,” one of which is
that, “[i]n the absence of congressional authorization, common lawmaking must be
necessary to protect uniquely federal interests.” Id. (quotations omitted). The Court
concluded that “[n]othing like that exists here” because the federal government has
no “unique interest . . . in determining how a consolidated corporate tax refund, once
paid to a designated agent, is distributed among group members.”2 Id. at 717-18
2
Notably, the FDIC, “which advocated for the Bob Richards rule” before us,
reversed course in the Supreme Court and “expressly conced[ed] that federal courts
‘should not apply a federal common law rule to . . . put a thumb on . . . the scale’
when deciding which corporate group member owns some or all of a consolidated
refund.” 140 S. Ct. at 718 (quoting Tr. of Oral Arg. 40).
5
(emphasis and question mark omitted). The Court in turn observed that “state law is
well equipped to handle disputes involving corporate property rights.” Id. at 718.
Ultimately, the Court concluded that our “reliance on Bob Richards’s analytical
framework was mistaken,” and it remanded the case to us for further consideration.
Id. In doing so, the Court noted that “[w]hether this case might yield the same or a
different result without Bob Richards is a matter the court of appeals may consider on
remand.” Id. Although the FDIC suggested that the Supreme Court could affirm on
the basis of our analysis of the Agreement under Colorado state law, the Court
declined to consider that suggestion, noting that it “took th[e] case only to” address
the propriety of the Bob Richards rule. Id.
After we received the Court’s decision, we directed the parties to file
supplemental briefs. That briefing is now complete.
III
The question before us on remand remains the same as before: who owns the
federal tax refund? As directed by the Supreme Court, we look to Colorado state law
to resolve this question.
Under Colorado law, “[c]ontract interpretation presents a question of law that
we review de novo.” Klun v. Klun, 442 P.3d 88, 92 (Colo. 2019). “In construing a
contract, our primary goal is to determine and give effect to the intent of the parties.”
Id. The intent of the parties is determined “primarily from the language of the
instrument itself.” Id. “When a written contract is complete and free from
ambiguity, we will deem it to express the intent of the parties, and we will enforce it
6
according to its plain language.” Id. “In ascertaining whether provisions of an
agreement are ambiguous, we review the instrument’s language and construe it
consistent with the plain and generally accepted meaning of the words employed.”
Id. “Terms used in a contract are ambiguous when they are susceptible of more than
one reasonable interpretation.” Id.Notably, we did not ignore Colorado law in our original decision. Indeed, in
the course of applying the Bob Richards rule, we “look[ed] to the terms of the
Agreement and, taking into account Colorado case law, decide[d] whether [the
Agreement] unambiguously addresse[d] how tax refunds [we]re to be handled.” In re
United Western Bancorp, 914 F.3d at 1270. Our original construction of the
Agreement now bears repeating because, whether or not it remains the law of the
case3, we continue to agree with it:
[T]he written terms of the Agreement are, at best, ambiguous regarding
the nature of the relationship that UWBI and the Bank intended to create
with one another. Specifically, certain of its provisions suggest the
existence of an agency relationship, while other provisions suggest the
intent to create something other than an agency relationship.
As noted, Section A.1 of the Agreement, which is contained
under the heading “General Rule — Federal,” provides, in pertinent
part:
If a regulated first-tier Affiliate incurs a net operating loss
or excess tax credits, the regulated Affiliate is entitled to a
refund equal to the amount that it would have been entitled
to receive had it not joined in the filing of a consolidated
3
The parties dispute whether the law-of-the-case doctrine applies here. We
need not resolve that dispute because, even if it does not, we would reach the same
outcome because we continue to find our state-law reasoning from the original
decision persuasive.
7
return with UWBI. Similar treatment is optional at UWBI
discretion for nonregulated first-tier Affiliates. Any refund
shall generally not exceed the amount claimed or received
as a refund resulting from a carryback claim filed by
UWBI. However, this shall not prevent UWBI from the
ability to make a refund over the amount received or
claimed as a refund or carryback, if in its sole discretion it
believes such payment is in its best interest. Additionally,
if part of [sic] all of an unused consolidated net operating
loss, net capital loss, tax credit or similar type item is
allocated to an Affiliate pursuant to Regulations Section
1.1502-21, and it is carried back, if utilized, or it is carried
forward, whether or not utilized, to a year in which such
Affiliate filed a separate income tax return or a
consolidated federal income tax return with another group,
any refund or reduction in tax liability arising from the
carryback or carryforward shall be retained by such
Affiliate and such item shall not enter into the calculation
of liability to or from UWBI.
Aplt. App., Vol. I at 41.
The first of these sentences—stating that “[i]f a regulated first-
tier Affiliate,” i.e., the Bank, “incurs a net operating loss or excess tax
credits, the regulated Affiliate is entitled to a refund equal to the amount
that it would have been entitled to receive had it not joined in the filing
of a consolidated return with USBI”—is arguably ambiguous. On the
one hand, it purports to “entitle[ ]” the regulated affiliate “to a refund
equal to the amount that it would have received had it not joined in the
filing of a consolidated return.” On the other hand, when contrasted
with the last sentence, it does not give the Bank the right to “retain” the
refund. Instead, under the first sentence, a refund received by UWBI as
a result of a net operating loss incurred by the Bank is taken into
account by the parties in calculating their year-end liabilities to each
other.
The second and third sentences of Section A.1 afford UWBI with
two types of discretion: (1) whether to pay any refund at all to a
nonregulated affiliate; and (2) when it pays a refund to any affiliate,
whether to pay an amount equivalent to the amount the affiliate would
have received had it filed its own income tax return, or instead to pay a
greater amount. These sentences thus arguably point toward something
more than a mere agency relationship.
8
The last sentence of Section A.1 indicates that if a net operating
loss of any affiliate is carried back to a year when that affiliate was
filing a separate income tax return (or filing a consolidated return with
another group), then “any refund . . . shall be retained by such Affiliate
and such item will not enter into the calculation of liability to or from
UWBI.” This arguably suggests that, in all other situations, an affiliate
does not “retain” a tax refund and, instead, refunds are taken into
consideration during the annual reconciliation of liability between the
parties.
Section A.2 of the Agreement, which is also contained under the
heading “General Rule – Federal,” states: “In essence, this Agreement
requires that each first-tier subsidiary be treated as a separate taxpayer
with UWBI merely being an intermediary between an Affiliate and the
Internal Revenue Service . . . .” Id. Although the term “intermediary”
is not expressly defined in the Agreement, it is commonly understood to
mean “[a] mediator or go-between.” Intermediary, Black’s Law
Dictionary (10th ed. 2014). Thus, in contrast to most of Section A.1,
Section A.2 clearly points to the existence of an agency relationship
between UWBI and its affiliates, rather than a debtor/creditor
relationship. In other words, it suggests that UWBI will simply act as a
conduit through which the refund will pass.
Section F of the Agreement, entitled “Tax Settlement Payments –
Federal and State,” states, in pertinent part, that affiliates are to make
“[e]stimated payments of Federal . . . taxes” to UWBI on a specified
quarterly basis (April 15, June 15, September 15, and December 15).
Id. at 44. Those estimated payments are to be in “an amount equal to
the amount of any estimated federal income taxes which the Affiliate
would have been required to pay on or before such dates if the Affiliate
had filed its own separate income tax return for such taxable period.”
Id. “Payments [by UWBI] to an Affiliate for net operating losses or
similar items shall not be made under this provision, but rather on an
annual basis pursuant to Section A” of the Agreement. Id.
In turn, Section E of the Agreement, entitled “Tax Settlement
Payments – Federal,” provides in pertinent part:
1. Preliminary tax settlement payments are due on or before
March 15 following the end of the appropriate taxable
year. Although overpayments of estimated taxes made by
Affiliates are not refunded until final tax settlement is
9
done, an Affiliate with a taxable loss for the year may
recover estimated taxes paid for that year before final
settlement if an “expedited refund” claim is filed with
UWBI by February 15 following the end of the tax year.
2. Each first-tier Affiliate shall compute its final tax
settlement liability based on the amounts included for that
Affiliate (and its subsidiaries, if applicable) in the
consolidated federal income tax return filed. A copy of
such computation will be prepared by October 31, and any
differences will be resolved. Final tax settlement
payments or refunds are due on or before November 15.
Id. at 43-44.
Considered together, Sections E and F obligate affiliates to make
quarterly estimated tax payments to UWBI during the course of a
taxable year, preliminary tax settlement payments to UWBI on or before
March 15th following the end of the taxable year, and final tax
settlement payments, if necessary, to UWBI on or before November
15th following the end of the taxable year. In turn, Section E, when
considered together with Section A, obligates UWBI to (1) refund to its
affiliates, by November 15th following the end of the taxable year, any
overpayments of estimated taxes, (2) expedite any such refund if an
affiliate has a taxable loss for the year in question and the affiliate files
with UWBI an expedited refund claim by February 15th following the
end of the taxable year, and (3) ensure that, when a regulated first-tier
affiliate incurs a net operating loss or excess tax credits, any such
refunds paid to that affiliate are equal to or greater than the amount that
such affiliate would have been entitled to receive had it not joined in the
filing of the consolidated tax return.
Section G of the Agreement states that “[e]ach Affiliate hereby
appoints UWBI as its agent . . . for the purpose of filing such
consolidated Federal income tax returns for the UWBI group as UWBI
may elect to file and making any election, application, or taking any
action in connection therewith on behalf of the Affiliates.” Id. at 44.
Lastly, Section H of the Agreement, entitled “Miscellaneous,”
contains two relevant paragraphs. Section H.1 states:
In the event of any adjustment to the tax returns of the
Group as filed (by reason of an amended return, claim for
10
refund, or an audit by a taxing authority), the liability of
the parties to this Agreement shall be re-determined to give
effect to any such adjustment as if it had been made as part
of the original computation of tax liability, and payments
between the appropriate parties shall be made within 10
business days after any such payments are made or refunds
are received, or, in the case of contested proceedings,
within 10 business days after a final determination of the
contest.
Id. Further, Subsection H.4 states, in pertinent part:
The intent of this Agreement is to provide an equitable
allocation of the tax liability of the Group among UWBI
and the Affiliates. Any ambiguity in the interpretation
hereof shall be resolved, with a view to effectuating such
intent, in favor of any insured depository institution.
Id. at 45.
Considered in its entirety, it is apparent that the Agreement was
intended to authorize the filing of a consolidated tax return and, in turn,
to create a series of payment obligations between UWBI and its
affiliates—including the Bank—in order to carry out the goal of filing a
consolidated tax return. Affiliates are obligated, by way of both
estimated and final tax payments, to pay UWBI the precise amount of
their federal income tax obligations. UWBI, in turn, is obligated to
refund to its affiliates any overpayments of estimated taxes. When an
affiliate incurs a taxable loss due to net operating losses or excess tax
credits, UWBI’s obligations depend upon the nature of the affiliate. If
the affiliate is a regulated, first-tier affiliate such as the Bank, then
UWBI is obligated to pay that affiliate “a refund equal to” or greater
than “the amount that it would have been entitled to receive had it not
joined in the filing of a consolidated return with UWBI.” Id. at 41
(§ A.1 of the Agreement). For “nonregulated first-tier Affiliates,”
UWBI has the discretion to decide whether or not to treat them similarly
to regulated first-tier affiliates in terms of tax refunds. Id.
Critically, however, the Agreement is, on its face, ambiguous
with respect to the type of relationship it intends to create between
UWBI and regulated, first-tier affiliates, such as the Bank, regarding the
ownership of refunds from the IRS. See Pinnacol Assurance v. Hoff,
375 P.3d 1214, 1229 (Colo. 2016) (noting that a contract is ambiguous
11
if it is reasonably susceptible of more than one meaning); id. (“Whether
a written contract is ambiguous is a question of law that we review de
novo.”). On the one hand, portions of the Agreement quite clearly
indicate the intent to create an agency relationship between UWBI and
its regulated, first-tier affiliates. For example, Section A.2 states that
“each first-tier subsidiary [is to] be treated as a separate taxpayer with
UWBI merely being an intermediary between an Affiliate and the” IRS.
Aplt. App., Vol. I at 41. Likewise, Section G states that UWBI is being
appointed by each affiliate to act as its agent for purposes of filing the
consolidated tax return and taking any action in connection therewith.
On the other hand, portions of the Agreement arguably suggest the
intent for UWBI to retain tax refunds before forwarding them on to
regulated, first-tier affiliates. For example, parts of Section A.1 imply
that UWBI will retain tax refunds and then later take them into account
during the annual settlement process. In addition, the fact that Section
A.1 affords UWBI with discretion regarding the amount to refund a
regulated, first-tier affiliate (i.e, the exact amount of the refund or a
greater amount) seems to suggest something other than an agency
relationship. Finally, the ambiguity of the Agreement on this issue is
compounded by the fact that it contains no language requiring UWBI to
utilize a trust or escrow for tax refunds—which would suggest the
existence of an agency or trust relationship—nor does it contain
provisions for interest and collateral—which would be indicative of a
debtor-creditor relationship. See In re NetBank, Inc., 729 F.3d 1344,
1351 (11th Cir. 2013); Fed. Deposit Ins. Corp. v. AmFin Fin. Corp., 757
F.3d 530, 535 (6th Cir. 2014).
***
Notably, the Agreement itself provides a method for resolving the
ambiguity. Section H.4 of the Agreement states that “[a]ny ambiguity
in the interpretation hereof shall be resolved, with a view to effectuating
such intent [i.e., to provide an equitable allocation of the tax liability of
the Group among UWBI and the Affiliates], in favor of any insured
depository institution.” Aplt. App., Vol. I at 45. Quite clearly,
construing the Agreement to create an agency relationship between
UWBI and the Bank with respect to federal tax refunds—and thereby
affording ownership of the tax refund to the Bank—is more favorable to
the Bank than construing the Agreement to create a debtor/creditor
relationship and thus affording ownership of federal tax refunds to
UWBI. We therefore conclude that the ambiguity in the Agreement
must be construed in favor of the Bank and the FDIC, and that,
12
consequently, the Agreement must be read as creating only an agency
relationship between UWBI and the Bank.
Id. at 1270-74 (footnote omitted).
The bankruptcy trustee argues in his supplemental brief that “[t]he Agreement
does not give the Bank any control over UWBI, let alone the right of interim control
necessary to establish an agency” under Colorado law. Aplt. Supp. Br. at 8. He also
argues that the Agreement “grants UWBI powers irreconcilable with the fiduciary
duties of a common-law agent, including the right to commingle tax refunds with its
other assets and use them to offset the liabilities of other members.” Id. at 8-9.
We find these arguments unavailing. As we have explained, the Agreement is,
with respect to the nature of the relationship that UWBI and the Bank intended to
create with one another, poorly drafted and ambiguous. The fact that the Agreement
does not address the specific points noted by the bankruptcy trustee merely confirms
this conclusion. Fortunately, however, Section H.4 of the Agreement is not
ambiguous and is dispositive in this case. As we noted in our original opinion,
Section H.4 requires us to construe any ambiguities in favor of the Bank and the
FDIC. Therefore, the Agreement must be read as creating an agency relationship
between UWBI and the Bank, rather than a debtor-creditor relationship.
Because the Agreement creates an agency relationship between UWBI and the
Bank, we conclude that the tax refund at issue belongs to the Bank, and that the
FDIC, as receiver for the Bank, was entitled to summary judgment in its favor.
13
IV
We AFFIRM the judgment of the district court and REMAND to the
bankruptcy court for further proceedings consistent with this opinion.
14