United States Ex Rel. Internal Revenue Service v. O'Cheskey (In Re Chama Land & Cattle Co.) , 310 F. App'x 726 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 19, 2009
No. 08-10006 Charles R. Fulbruge III
Clerk
In the Matter of: CHAMA LAND and CATTLE COMPANY
Debtor
-------------------------------------------------
UNITED STATES OF AMERICA, on behalf of Internal Revenue Service
Appellee
v.
WALTER O’CHESKEY
Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
This case involves the complex interplay of bankruptcy and tax law and
includes a procedural posture spanning over ten years and six courts. We
conclude that the distributions in question were a return of equity, not a
payment of damages, that the bankruptcy court did not exceed the scope of the
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-10006
district court’s remand, and that the Trustee may not yet take a tax deduction
for unpaid New Mexico taxes. We therefore affirm in part, reverse in part, and
remand for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
Grady Vaughn (“Grady”) was an oil and gas and real estate investor in
Dallas, Texas. Through an inheritance, he and his younger brother, Gary
Vaughn (“Gary”), owned all of the shares of Chama Land & Cattle Company
(“Chama”). Chama’s assets included a 32,000-acre ranch in New Mexico (the
“Ranch”), a hunting lodge, two Class A game park licenses, and a large herd of
elk. As of the late 1980s, Gary was the trust beneficiary of approximately $8.9
million of assets that Grady managed as co-trustee. Gary’s assets included
31.2% of Chama’s stock. Grady owned the remaining 68.8% of Chama’s stock.
In November 1988, Grady signed four promissory notes in favor of NCNB
Texas National Bank (“NCNB”) with an aggregate principal amount in excess
of $24.3 million. To secure these notes, Grady pledged, inter alia, his 68.8%
share of Chama’s stock. In November 1991, NCNB transferred its interest in the
promissory notes and collateral to the FDIC, which in turn sold its interest in
these notes and collateral to Regency Savings Bank (“Regency”) for $14.5
million. Thus, Grady was in debt to Regency for over $20 million. Gary did not
have any debts.
In early 1989, federal and state authorities began investigating allegedly
illegal wildlife trapping at the Ranch. To address these problems, as well as his
other financial issues, Grady enlisted the assistance of Legal Econometrics, Inc.
(“LEI”) and its principal, Malcolm Kelso (“Kelso”), who was a “crisis manager.”
Instead of assisting, however, Kelso allegedly undertook several fraudulent
actions that, although purportedly to protect Chama’s assets from the state of
New Mexico and Grady’s creditors, actually gave Kelso control of the Ranch and
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No. 08-10006
diluted the value of Regency’s security interest in the Chama stock. These
transactions (the “1990 Transactions”) resulted in Kelso’s taking the helm of
Chama and led to the effective transfer of most of Chama’s assets to three other
debtors (the “Chama Estates”). Kelso also allegedly drained Gary’s trust fund
of approximately $8.9 million and misused Chama’s assets to fund the 1990
Transactions and pay for the resulting litigation. During the confirmation
hearing for the Trustee’s Chapter 11 Plan that resulted from Kelso’s fraudulent
actions, the bankruptcy court described the 1990 Transactions as follows:
The separateness of the [Chama] Estates, if any, resulted from
contrived transactions, ostensibly for the benefit of Grady Vaughn
and the ranch itself in dealing with state authorities in New Mexico
who were seeking criminal and civil penalties. In fact, the
transactions giving rise to the [Chama] Estates were a means by
which Kelso improperly gained control of the [Chama] Estate
corporations or their assets for his own benefit and in breach of his
fiduciary duty.
The bottom line is that Kelso’s 1990 transactions diluted the value of NCNB’s
security interest in Grady’s 68.8% of the Chama stock and also diluted the value
of Gary’s interest. As discussed above, Regency eventually bought NCNB’s
diluted security interest.
In May 1991, Gary sued Grady, Kelso, and other parties in state court
regarding the depletion of his trust assets. Regency also began collection
actions. In January 1993, Regency foreclosed on some of Grady’s other assets
and received $12 million in a credit bid for an apartment building that Grady
owned. Regency reduced the debt Grady owed under the promissory notes by
this amount. On June 1, 1993, Grady paid Regency $25,000 to adjourn the
foreclosure sale of the Chama stock until June 15.
On June 15, Grady filed a Chapter 11 bankruptcy petition. Kelso and LEI,
Kelso’s company, also filed Chapter 11 bankruptcy petitions, as did the other
corporations (i.e., the Chama Estates) involved in the 1990 Transactions.
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No. 08-10006
Although the parties filed these bankruptcy cases in different districts, the
courts transferred them all to the bankruptcy court in the Northern District of
Texas and consolidated them before Judge Abramson. The bankruptcy court
appointed Walter O’Cheskey as the Chapter 11 Trustee (“Trustee”) of the Chama
Estates. Gary filed a proof of claim against Grady and the Chama Estates for
approximately $70 million in damages (which included actual damages of about
$25 million and multiple punitive damages claims). Regency also filed a proof
of claim, seeking actual damages of about $11 million. Gary and Regency both
claimed that Kelso had diluted Chama’s value, making it worthless.
In January 1994, Regency filed an adversary proceeding asserting claims
for damages against the parties involved in the 1990 Transactions. After
dismissing some of the claims for lack of standing, the bankruptcy court held a
trial on Regency’s remaining claims. The court determined that Regency could
not prevail on its causes of action, with the exception of a breach of contract
claim against Grady. On appeal, the Trustee contends that the bankruptcy court
did not actually make a final ruling on all of Regency’s claims, as it never fully
resolved Regency’s claims for constructive fraud, breaches of statutory and
equitable duties, and rescission. Nevertheless, Regency and the Trustee
eventually settled the case for distributions under the Trustee’s Chapter 11
liquidation plan (the “Trustee’s Plan”), meaning that the bankruptcy court did
not need to resolve these issues.
The bankruptcy court then oversaw the implementation of the Trustee’s
Plan. The court first approved the Trustee’s sale of the Ranch assets to the
Jicarilla Apache Tribe for $25.5 million. The Trustee then used this money as
the basis for the reorganization of the Chama Estates. In conjunction with the
Trustee’s Plan, Grady filed a Chapter 11 plan of reorganization (“Grady’s Plan”),
and Antigone Corporation, one of entities that owned stock in the Chama
Estates, also filed a Chapter 11 liquidation plan (the “Antigone Plan”). All
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No. 08-10006
principal parties, except Kelso, joined in a settlement that included all three
Chapter 11 Plans.** As part of the Trustee’s Plan, the Trustee used the proceeds
from the sale of the Ranch to pay off creditors. The Trustee’s Plan provided that
Gary and Regency, as the Class 6 “Settling Principals,” were each entitled to
approximately 48% of the residual proceeds from the Ranch after the Trustee
paid the claims of creditors in Classes 1-5. The parties agreed to sign mutual
releases of their claims in accordance with the Trustee’s Plan. The releases also
transferred all equity interests in the Chama Estates to the Trustee, who would
dissolve the corporations.
The Trustee’s Plan purposefully did not address the issue of the estate’s
federal tax liabilities. Instead, the Plan required the Trustee to seek a tax
liability determination from the bankruptcy court under 11 U.S.C. § 505. The
Plan acknowledged that the court would resolve any disputes regarding the
allocation of payments and distributions and would determine whether the
Trustee had made those payments on claims for damages (making them
deductible expenses) or for a return of equity interests (which are not
deductible).
On June 5, 1995, the Trustee closed the sale of the Ranch for $25.5 million.
Upon receiving the funds, the Trustee estimated the tax liabilities under the
assumption that none of the distributions were deductible and wrote three
checks to the Internal Revenue Service (“IRS”) for the debtors’ potential federal
income tax liabilities.
On July 28, 1995, the bankruptcy court held a confirmation hearing. The
bankruptcy judge found that Gary suffered losses of more than $28 million.
Under the Trustee’s Plan, Gary received distributions from the Trustee of
$7,559,615.00, although he received only $5,272,303.55 in 1995 and received the
**
Kelso chose to litigate his claims with the bankruptcy estate, but the bankruptcy
court eventually disallowed his claims.
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No. 08-10006
remainder in 1996 and 1997. The bankruptcy judge concluded that Regency was
due the same amount as Gary, as both were Class 6 creditors. Importantly, per
the Trustee’s Plan, the bankruptcy court did not allocate any portion of these
distributions as payments for damages or equity, leaving that issue for a tax
liability determination.
On September 30, 1996, the Trustee filed the debtors’ 1995 federal income
tax returns. The Trustee claimed damages deductions for some of the
distributions to both Gary and Regency. Based on its accrual accounting
method, the Trustee allocated all of the payments to Gary and Regency to the
1995 tax year, even though the Trustee had not distributed the full amount to
them in 1995. In October 1996, the IRS issued a tax refund based on this tax
return, but notified the Trustee that it would be examining the 1995 return.
The IRS ultimately concluded that the Trustee could not take the damages
deductions in the 1995 tax return. On July 18, 1997, the Trustee filed a motion
under 11 U.S.C. § 505 requesting that the bankruptcy court determine the
debtors’ 1995 income tax liabilities. On August 15, 1997, the IRS issued three
notices of deficiency to the Trustee, disallowing the claimed deductions. The
Trustee twice filed amended tax returns, increasing the claimed damages
deductions for the distributions to Gary and Regency. The tax liability
determination, which is the subject of this appeal, proceeded to a trial before the
bankruptcy court.
B. Procedural Background
1. First bankruptcy court ruling (Judge Abramson) (1999)
In March 1999, the bankruptcy court held a trial on the Trustee’s motion
to determine the debtors’ tax liabilities. The court correctly noted that the
Trustee bears the burden of proving an entitlement to a deduction. See Woodall
v. Comm’r, 964 F.2d 361, 363 (5th Cir. 1992). The court held that the Trustee
failed to meet this burden, concluding that all of the distributions to both Gary
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No. 08-10006
and Regency were to redeem their equity interests in Chama and therefore were
not deductible. For Gary, the court noted that he had executed a release of his
claims for damages pursuant to the Trustee’s Plan. For Regency, the court
relied on its earlier conclusion that Regency could not prove any of its causes of
action in its adversary proceeding against the Chama debtors and observed that
Regency’s lawyer admitted that Regency had “lost” the adversary proceeding.
The court stated that “the rulings as to Regency were res judicata of its claims
for damages; its only standing was that of a shareholder of Chama.” In re Am.
Elk Conservatory, Inc., No. 393-38328-HCA-11 et al., at 44-45 (Bankr. N.D. Tex.
Nov. 10, 1999). The court also chose not to consider any tax issues involving the
1996 or 1997 distributions.
In sum, the court held that the “[d]ebtors are liable for the income tax
deficiencies proposed by the Notices of Deficiency to the Trustee for the 1995
year except for the appropriate adjustments to be made for deduction of New
Mexico state income taxes when the federal income tax liabilities are finally
determined.” In re Am. Elk Conservatory, Inc., No. 393-38328-HCA-11 et al., at
46.
2. First district court appeal (Judge Solis) (2001)
The Trustee appealed the bankruptcy court’s order to the district court.1
The district court issued a thirty-four page opinion on December 21, 2001,
concluding that at least a portion of the Trustee’s payments to Gary were
attributable to the settlement of Gary’s claims for damages, but that none of the
payments to Regency were for damages. The court rejected the Trustee’s
argument that the bankruptcy court improperly relied upon its prior decision
that Regency could not make out a cause of action in its adversary proceeding.
The Trustee had argued that the bankruptcy court’s failure to enter a final
1
The Trustee made a conditional payment of taxes and interest to stay the judgment.
7
No. 08-10006
judgment for these claims meant that the court could not later rest upon its
rejection of Regency’s contention that the Trustee had paid it for damages. The
district court responded that “[t]hough Regency’s appeal period would not begin
without a final judgment, any failure to comply with [Federal Rule of Civil
Procedure] 58 [which requires every judgment to be set forth in a separate
document] does not necessarily destroy the validity of the bankruptcy court’s
conclusion of res judicata on the matter.” O’Cheskey v. United States, No. 3-00-
CV-0142, 2001 WL 1658144, at *7 (N.D. Tex. Dec. 21, 2001). The court also
noted that even if the bankruptcy court could not rely on its prior decision as res
judicata, its conclusion that Regency could not make out a cause of action for
damages was still persuasive for the tax liability determination.
Further, the court ruled that the bankruptcy court did not err in failing to
credit its own prior statement that the value of Gary and Regency’s claims if
they went to trial exceeded the amounts they received under the Trustee’s Plan.
The Trustee had argued that the bankruptcy court’s statements in this regard
demonstrated that the payments were for damages, but the district court
observed that the Trustee’s reliance on this isolated statement was “misplaced.”
Id. at *8. The district court reiterated that Regency had lost its adversary
proceeding against the debtors. Thus, the district court concluded that the
bankruptcy court was not making a decision that the distributions to Gary and
Regency were for damages for purposes of the Trustee’s tax liabilities when the
bankruptcy court noted that their claims likely exceeded the amount they would
recover in the bankruptcy distribution.
Comparing Gary and Regency, the district court observed that they
received the same amount under the distribution because Gary had a lower
equity interest in Chama but a viable damages claim, while Regency had a
larger equity interest in Chama but no possible damages. Therefore, the
bankruptcy court had erred in not allocating some of the payments to Gary as
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No. 08-10006
damages. However, the district court concluded that there was insufficient
evidence in the record to determine how much of the payments to Gary were for
damages. The district court therefore remanded the case to the bankruptcy
court for an allocation of some of the distributions to Gary as damages.
With regard to the debtors’ claimed net operating losses for tax years 1996
and 1997, the district court determined that the bankruptcy court did not abuse
its discretion in choosing not to decide whether any net operating losses would
“carry back” to the 1995 tax year. The court noted that the Trustee still could
seek a Tax Court adjudication on this issue.
3. First remand to the bankruptcy court (Judge Abramson) (2002)
The bankruptcy court held a trial on remand regarding the calculation of
the payments to Gary that constituted damages. In its written opinion, the court
first renewed its previous conclusion that the payments to Gary were a return
of equity. Nevertheless, “in the alternative, and out of respect for the District
Court’s Opinion that found that some of the distributions were for damages, the
Court finds that of the $2,905,338, the sum of $198,718.17 was in payment of
damages and thus deductible as an ordinary and necessary business expense.”
In re Am. Elk Conservatory, Inc., No. 93-38330-HCA-11, 2002 WL 31934160, at
*2 (Bankr. N.D. Tex. Nov. 1, 2002). The bankruptcy court derived the number
$198,718.17 from a calculation involving attorneys’ fees.
4. Second district court appeal (Judge Kinkeade) (2004)
On appeal of the bankruptcy court’s ruling, the district court concluded
that the bankruptcy court had
refused to permit the Trustee to present evidence relevant to the
allocation of distributions to Gary Vaughn, yet stated in its opinion
on remand that the Trustee’s lack of evidence as to Gary Vaughn’s
damages supported its refusal to find that the majority of the
Trustee’s distributions to Gary Vaughn were for his tort claims.
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No. 08-10006
O’Chesky 2 v. United States, No. 3:04-CV-0137, 2004 WL 2397286, at *1 (N.D.
Tex. Sept. 13, 2004). The district court noted that the record still lacked
evidence as to the proper allocation of the distributions to Gary, so it remanded
to the bankruptcy court “for the express purpose of receiving evidence from the
parties regarding the allocation of the distributions made to Gary Vaughn.” Id.
5. Second remand to the bankruptcy court (Judge Houser) (2005)
Because Judge Abramson had retired, Judge Houser heard the case on the
second remand. See In re Am. Elk Conservatory, Inc., No. 393-38328-BJH-11,
et al., 2005 WL 1441785 (Bankr. N.D. Tex. May 20, 2005). The bankruptcy court
concluded that the Trustee was entitled to a tax refund of $1,980,081 for 1995.
In re Am. Elk Conservatory, Inc., No. 393-38328-BJH-11 et al., 2005 WL
3099926, at *1 (Bankr. N.D. Tex. Oct. 17, 2005). The court treated as deductible
damages all of the distributions to Gary in 1995, 1996, and 1997, except those
for debt repayment. The court made an alternative holding that if the scope of
the remand was only for the distributions that Gary actually received in 1995,
then the Trustee was entitled to a tax refund of $1,508,564. Id. at *2. The
bankruptcy court also determined that the Trustee was not entitled to a
deduction for unpaid New Mexico state taxes for 1995, as the amount of those
unpaid taxes depended on the amount of federal tax liability, which had not yet
been determined. Id. at *4.
6. Third district court appeal (Judge Lindsay) (2007)
Both parties appealed the bankruptcy court’s decision on the second
remand. See United States v. O’Cheskey, No. 3:05-CV-2468, 2007 WL 2907821(N.D. Tex. Oct. 5, 2007). The district court first affirmed the bankruptcy court’s
conclusion regarding the distributions to Gary in 1995, ruling that all of the
distributions except those for debt repayment were for damages. The district
2
The district court misspelled O’Cheskey’s name in its caption.
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No. 08-10006
court reversed the bankruptcy court, however, with regard to the distributions
to Gary in 1996 and 1997, concluding that the court’s allocations for those years
exceeded the scope of the second remand.
Finally, the court upheld the bankruptcy court’s ruling that the Trustee
was not entitled to a deduction for unpaid New Mexico state taxes, because the
amount of that liability was not ascertainable with reasonable accuracy until the
parties resolved the federal tax liability.
7. Appeal to the Fifth Circuit
Both parties appealed the district court’s order to this court. However, the
United States dismissed its appeal on December 3, 2007. Therefore, only the
Trustee’s appeal remains.
The Trustee appeals three rulings: (1) the lower courts’ conclusions that
the payments to Regency were for a return of equity and therefore are not
deductible, (2) the district court’s decision that the bankruptcy court exceeded
the scope of the remand when it included the 1996 and 1997 payments to Gary
in its calculations, and (3) the district court’s ruling regarding the unpaid 1995
New Mexico state taxes.
II. JURISDICTION AND STANDARD OF REVIEW
The bankruptcy court had jurisdiction over the Trustee’s motion for a
determination of tax liability pursuant to 28 U.S.C. § 157(b)(2)(A) & (O). The
district court had jurisdiction over the appeals of the bankruptcy court’s
decisions pursuant to 28 U.S.C. § 158(a). We have jurisdiction over the appeal
of the district court’s final judgment pursuant to 28 U.S.C. § 158(d).
This court “applies the same standard of review to the decisions of a
bankruptcy court as does the district court.” Plunk v. Yaquinto (In re Plunk),
481 F.3d 302, 305 (5th Cir. 2007). Therefore, we must review findings of fact for
clear error and conclusions of law de novo. Id.11
No. 08-10006
The allocation of distributions for tax liability purposes is a finding of fact
that we review for clear error. Robinson v. Comm’r, 70 F.3d 34, 38 (5th Cir.
1995). Interpreting the proper scope of review on remand is a question of law
that we review de novo. United States v. Lee, 358 F.3d 315, 320 (5th Cir. 2004).
Whether a taxpayer has satisfied the “all events” test (for the issue regarding the
unpaid 1995 New Mexico state taxes) is also a question of law that we review de
novo. See Interex, Inc. v. Comm’r, 321 F.3d 55, 58 (1st Cir. 2003).
III. DISCUSSION
A. Distribution to Regency: Return of Equity or Payment of Damages
The Internal Revenue Code allows a taxpayer to take a deduction for “all
the ordinary and necessary expenses paid or incurred during the taxable year
in carrying on any trade or business.” I.R.C. § 162(a). By contrast, a taxpayer
may not take a deduction for “capital expenditures.” I.R.C. § 263. If the
Trustee’s payments to Regency were for a return of equity, then they were
capital expenditures that are not subject to a deduction. See United States v.
Houston Pipeline Co., 37 F.3d 224, 226 (5th Cir. 1994) (“Stock redemptions, as
a general rule, are characterized as capital transactions, and the purchase price
of a stock redemption is not deductible.” (footnotes omitted)). If the payments
were for damages, however, then the Trustee could deduct them on the debtors’
tax returns so long as the expenses were “ordinary and necessary.” See Green
v. Comm’r, 507 F.3d 857, 871 (5th Cir. 2007). The Trustee bears the burden of
proof in challenging the IRS’s disallowance of a deduction. See Woodall, 964
F.2d at 363.
A determination of whether a payment is for damages or is for the
exchange of stock is generally dependent on the payor’s intent. See Srivastava
v. Comm’r, 220 F.3d 353, 365-66 (5th Cir. 2000), overruled on other grounds by
Comm’r v. Banks, 543 U.S. 426 (2005). “When determining the tax treatment
of a settlement, we must ask[,] ‘in lieu of what was the . . . settlement awarded?’”
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No. 08-10006
Green, 507 F.3d at 867 (quoting Srivastava, 220 F.3d at 365) (omission in
original). Although the court first looks to the language of the settlement
agreement—here the Trustee’s Plan—“[w]here the settlement agreement lacks
express language of purpose, the court looks beyond the agreement to other
evidence that may shed light on the intent of the payor as to the purpose in
making the payment.” Id. (internal quotation marks omitted). The Trustee’s
Plan left the question of how to allocate the distributions to the bankruptcy court
in a proceeding pursuant to 11 U.S.C. § 505.
The Trustee challenges the lower courts’ determinations that the 1995
payments were a return of Regency’s equity. The basis of the Trustee’s
argument is that both Gary and Regency asserted claims for damages against
the Chama Estates, so it makes little sense to treat the distributions to Gary and
Regency differently, especially as they each received the same amount. The
Trustee asserts that the whole point of the Trustee’s Plan was to bring the
debtors’ cases to a conclusion, which required that the Trustee settle all
outstanding litigation. Thus, the distributions enabled the settlement of both
Gary’s and Regency’s claims. As the bankruptcy court stated, “it was Gary’s
unliquidated claims (along with those of other litigants) that were the obstacle
to a viable plan of reorganization for the Debtors that could bring the Debtors’
cases to a conclusion and insure that creditors were paid.” In re Am. Elk
Conservatory, Inc., 2005 WL 1441785, at *4. The Trustee asserts that the same
analysis should apply with respect to Regency. In particular, the Trustee points
to the statements that the bankruptcy court made indicating that both Gary and
Regency received less in the distribution than they would have had they pursued
their claims, suggesting that the payments to both of them were for damages.
The Trustee contends that this was the “law of the case,” and that a later ruling
that Regency did not suffer any damages contradicts this finding.
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No. 08-10006
Finally, the Trustee notes that Regency owned a 68.8% interest in
Chama’s stock, and that after the 1990 Transactions, the stock was worth
nothing. The Trustee sold Chama’s main asset, the Ranch, for $25.5 million,
which the Trustee asserts supports a conclusion that Regency suffered at least
$17 million in damages (68.8% of $25.5 million). Moreover, the Trustee’s outside
accountant testified that his initial calculation of Regency’s damages was based
on the difference between its ownership of Chama’s equity (68.8%) and the
percentage Regency received in the distribution (48%), meaning that Regency
suffered at least 20% in damages.
What the Trustee fails to appreciate, however, is that Regency lost its
adversary proceeding against the Chama Estates, meaning that the bankruptcy
court had previously determined that Regency did not suffer any damages.
Regency’s lawyer admitted during the confirmation hearing for the Trustee’s
Plan that Regency had lost its claims for damages against the debtors. The
Trustee’s argument that the bankruptcy court improperly gave preclusive effect
to this finding without making it a final judgment is unavailing, particularly
given that the lack of a separate judgment under Bankruptcy Rule 9021 and
Federal Rule of Civil Procedure 58 does not prevent a court from considering the
issue final if the parties evinced the intent to treat the order as final. See In re
Seiscom Delta, Inc., 857 F.2d 279, 285 (5th Cir. 1988); Nagle v. Lee, 807 F.2d 435,
441-42 (5th Cir. 1987). The Trustee did not attempt to appeal the bankruptcy
court’s order, even though the Trustee filed a motion for an entry of judgment.
This failure to appeal, along with Regency’s lawyer’s admission that Regency
had lost in the adversary proceeding, evinces an intent to consider the
bankruptcy court’s decision final. See In re Seiscom Delta, Inc., 857 F.2d at 285;
Nagle, 807 F.2d at 441-42.
Further, as the district court noted, even if the bankruptcy court should
not have given preclusive effect to its prior finding, it still could use the ruling
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No. 08-10006
as persuasive evidence that Regency had not suffered any damages. The Trustee
fails to explain why the district court clearly erred in relying on this ruling,
particularly if the court simply considered it as persuasive.
As additional evidence to support the district court’s conclusion, Regency
did not treat the distributions as damages on its own tax return. There is also
an eminently plausible explanation for the different treatment of Gary and
Regency, even though they ultimately received the same distribution: Gary
suffered damages exclusive of those related to his stock interest in Chama, such
as losses from his trust fund and lost earnings from other oil and gas properties
that Kelso had improperly transferred to the Chama Estates. With regard to the
bankruptcy court’s statement at the confirmation hearing that Regency’s claims
were worth more than it would receive in a distribution, the same bankruptcy
judge who made that statement (Judge Abramson) noted in this proceeding that
there were no final judgments establishing the existence of damages and that
the statement in the confirmation hearing was pursuant to a finding that the
settlement was reasonable. In light of the scant contrary evidence regarding the
payor’s intent, these facts, in combination, support the lower courts’ decisions.
In sum, there were sufficient facts for the bankruptcy court to conclude
that the distribution to Regency was for a return of equity. Accordingly, the
Trustee has failed to demonstrate that the district court clearly erred in
upholding the bankruptcy court’s conclusion, and we affirm the district court’s
decision on this issue.
B. Scope of the Remand
Although the district court, in the third appeal, affirmed the bankruptcy
court’s conclusion that the 1995 payments to Gary were for damages, the court
ruled that the bankruptcy court erred in considering the 1996 and 1997
payments because they were beyond the scope of the prior remand from the
district court. The Trustee asserts that this was error. This issue impacts the
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No. 08-10006
amount of deductions the Trustee can take for the payments to Gary, as I.R.C.
§ 172(b)(1)(A)(i) allows a taxpayer to “carryback” an entity’s net operating losses
for the “two taxable years preceding the taxable year of such loss.”
In the bankruptcy court’s first ruling, the court held that the payments to
both Gary and Regency were for a return of equity. The court also expressly
declined to consider the possible net operating loss carrybacks for 1996 and
1997. In the first appeal, the district court ruled that a portion of the Trustee’s
payments to Gary were attributable to the settlement of Gary’s claims for
damages. The district court also upheld the bankruptcy court’s decision not to
consider the possible carrybacks, as the word “may” in 11 U.S.C. § 505 “appears
intended to grant the bankruptcy court discretion as to whether it will determine
taxes.” O’Cheskey, 2001 WL 1658144, at *18. The court held that the
bankruptcy court did not abuse its discretion, particularly given that the Trustee
still could pursue a Tax Court adjudication for these years. The district court’s
remand order read as follows: “The case is remanded to the bankruptcy court for
calculation of the amount of the payments to Gary that were for damages claims
and for determination of the Trustee’s tax liability in accordance with this order.
In all other respects the order of the bankruptcy court is affirmed.” Id. at *21.
Neither the bankruptcy court in the first remand nor the district court in the
second appeal considered the possible effect of the net operating loss carrybacks.
The district court’s second remand order stated that it was remanding the case
“for the express purpose of receiving evidence from the parties regarding the
allocation of the distributions made to Gary Vaughn.” O’Chesky, 2004 WL
2397286, at *1.
In the second remand, the bankruptcy court calculated the Trustee’s tax
liability based on the distributions to Gary for damages. The bankruptcy court
determined the Trustee’s taxes while including the payments to Gary for 1996
and 1997, but also provided an alternative holding in case the remand was
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No. 08-10006
limited to the 1995 payments. In the third appeal, the district court held that
the bankruptcy court’s calculations that included the 1996 and 1997 payments
were beyond the scope of the remand. The court’s entire analysis of this issue
is as follows:
IRS first argues that the bankruptcy court erred in exceeding
the scope of remand when it held that all distributions to Gary were
for damages. According to IRS, the 1996 and 1997 tax years were
not before the bankruptcy court on this remand. The court agrees.
This litigation began in 1997 when Trustee filed a motion with
the bankruptcy court to determine the federal income tax liability
for Chama Estates for the 1995 tax year. When the court remanded
this case to the bankruptcy court “for calculation of the amount of
the payments to Gary that were for damages claims and for
determination of the Trustee’s tax liability,” the 1995 tax year was
the only year before the court. The 1996 and 1997 tax years were
only visited by the court for the purpose of determining the losses
available for carryback to reduce the taxable income for the Chama
Estates for tax year 1995. The 1996 and 1997 tax year disputes
were (and remain) pending in Tax Court. The court held that the
bankruptcy court did not abuse its discretion in declining to decide
the 1996 and 1997 net operating losses. Therefore, the bankruptcy
court exceeded the scope of remand and erred in characterizing the
1996 and 1997 payments to Gary as damages.
O’Cheskey, 2007 WL 2907821, at *6-7.
The Trustee argues that the district court erred in this conclusion,
because, he contends, the bankruptcy court was free to consider the possible
carryback effects of net operating losses for 1996 and 1997. In the appellate
context, “[t]he mandate rule requires a district court on remand to effect our
mandate and to do nothing else. Further, on remand the district court must
implement both the letter and the spirit of the appellate court’s mandate and
may not disregard the explicit directives of that court.” Gen. Universal Sys. v.
HAL Inc., 500 F.3d 444, 453 (5th Cir. 2007) (internal quotation marks and
citations omitted). Bankruptcy courts are subject to the mandate rule. See Jam.
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No. 08-10006
Shipping Co. v. Orient Shipping Rotterdam, B.V. (In re Millenium Seacarriers,
Inc.), 458 F.3d 92, 97 (2d Cir. 2006).
The district court in the first appeal was correct to hold that the
bankruptcy court did not abuse its discretion in choosing not to consider the
1996 and 1997 net operating losses. See 11 U.S.C. § 505(a)(1) (“Except as
provided in paragraph (2) of this subsection, the court may determine the
amount or legality of any tax . . . .” (emphasis added)). However, this ruling does
not mean that the bankruptcy court could not, in its discretion, consider the
1996 and 1997 carryback issue on remand. The district court did not hold that
the bankruptcy court was precluded from analyzing this issue; it merely stated
that the bankruptcy court had not abused its discretion in its first ruling by
choosing not to consider it. Moreover, the remand orders did not prevent the
bankruptcy court from considering the 1996 and 1997 issues that impact the
1995 tax liabilities. Instead, the district court remanded the case (twice) for a
calculation of the amount of distributions that Gary received as damages. Based
on the carryback rule in I.R.C. § 172(b)(1)(A)(i), this calculation could include,
if the bankruptcy court chose to consider it based on its discretionary powers
under 11 U.S.C. § 505, the net operating losses for the two subsequent years.
The language the district court used to remand the case to the bankruptcy
court was sufficiently broad to include the 1996 and 1997 distributions. This is
particularly true given that it would have been unnecessary for the bankruptcy
court to analyze the carryback issue in its first order after concluding that none
of the payments to Gary were for damages. That is, the carryback issue became
relevant only after the district court ruled that at least some of the distributions
to Gary were for damages. Accordingly, the district court erred in holding that
the bankruptcy court, in the second remand, exceeded the scope of the remand,
because the remand never restricted the bankruptcy court from considering the
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No. 08-10006
1996 and 1997 carrybacks. We therefore reverse and remand for a calculation
of the tax refund due the Trustee when including the 1996 and 1997 carrybacks.
C. Qualified Settlement Fund
Throughout this litigation, the parties have disputed whether the Trustee
made some of its payments from a valid Qualified Settlement Fund (“QSF”). A
QSF is a mechanism that allows a taxpayer to deduct payments in the year that
the taxpayer established the QSF, even if the fund itself does not actually make
those payments until subsequent years. See 26 C.F.R. § 1.468B-2. The district
court concluded that the Trustee created two QSFs in 1995.3 With respect to the
1996 and 1997 distributions to Gary, the government asserts that if we reverse
the district court regarding the scope of the remand—making these payments
deductible—then we should also reverse the district court’s conclusion that the
Trustee had established two QSFs in 1995, from which it made the 1996 and
1997 payments.4
However, we are unable to reach the merits of the government’s contention
because it waived its argument when it dismissed its appeal in this case. The
government attempts to avoid this outcome by noting that “[e]ven though an
appellee has not filed a cross appeal, he may take the position on appeal that the
3
The bankruptcy court originally ruled that the Trustee had failed to prove the
requirements of a QSF. The district court in the first appeal reversed this finding. The
district court in the third appeal subsequently ruled that the Trustee could not deduct the
payments to Regency as payments from a QSF because the Trustee had paid Regency for a
return of equity, not damages. The district court in the third appeal also determined that the
payments to Gary satisfied the requirements of a payment from a QSF, but noted that this
designation was unavailable for the 1995 payments and refused to consider the payments from
1996 or 1997 because they were beyond the scope of the remand.
4
Given that the district court did not err in upholding the bankruptcy court’s
conclusion that the payments to Regency were for a return of equity, we need not reach the
QSF issue with respect to the payments to Regency. This is because QSF status is relevant
only to whether the Trustee can take a deduction, which is possible here only if the Trustee’s
distributions to Regency were to pay for damages. Cf. 26 C.F.R. § 1.468B-2(k) (treating a QSF
like a corporation for tax purposes).
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No. 08-10006
record supports the court’s judgment on any ground, including one rejected or
ignored in the lower court.” Hoyt R. Matise Co. v. Zurn, 754 F.2d 560, 565 n.5
(5th Cir. 1985). The government is not seeking an alternate ground, however,
to support the district court’s ruling, but instead is specifically asking this court
to reverse the district court’s holding on this point. That is, the district court
explicitly held that the Trustee had established two QSFs, and the government
attacks that holding even though it already dismissed its appeal in this case.
Accordingly, we cannot consider the government’s argument, as it did not appeal
the district court’s order on this issue.
D. Unpaid New Mexico State Taxes for 1995
In the first remand at the bankruptcy court, the court held that the
Trustee was entitled to take a deduction of $651,177 for the state taxes he had
paid to New Mexico in 1995. Because the government dismissed its appeal in
this case, the deduction for the taxes the Trustee already paid is not at issue.
However, in the second remand to the bankruptcy court, the court held that the
Trustee was not entitled to a deduction for the additional, but still unpaid, New
Mexico state taxes. The court held that
the full amount of the New Mexico state tax liability was not fixed
in 1995 under the so-called “all events” test because the amount of
the liability could not be determined with reasonable accuracy. The
state tax liability could not be fixed at that time because it
piggybacks the underlying federal tax liability which was contested
by the Trustee (and still remains in dispute). When the federal tax
liabilities are finally adjudicated, the amount of the New Mexico
state income taxes can be determined and the Debtors will be
entitled to a deduction in that year.
In re Am. Elk Conservatory, Inc., 2005 WL 3099926, at *2. The district court in
the third appeal affirmed this ruling, noting that “[i]t is not possible to
determine the amount of the state tax liability with reasonable certainty until
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No. 08-10006
the federal income tax liability is established.” O’Cheskey, 2007 WL 2907821, at
*9. The Trustee appeals this conclusion.
As an accrual-based taxpayer, the Trustee (on behalf of the debtors), may
deduct an expense from federal income tax “in the taxable year in which [(1)] all
the events have occurred that establish the fact of the liability, [(2)] the amount
of the liability can be determined with reasonable accuracy, and [(3)] economic
performance has occurred with respect to the liability.” 26 C.F.R. § 1.461-
1(a)(2)(i); see also I.R.C. § 461(h)(1) (“For purposes of this title, in determining
whether an amount has been incurred with respect to any item during any
taxable year, the all events test shall not be treated as met any earlier than
when economic performance with respect to such item occurs.”); § 461(h)(4) (“For
purposes of this subsection, the all events test is met with respect to any item if
all events have occurred which determine the fact of liability and the amount of
such liability can be determined with reasonable accuracy.”); United States v.
Anderson, 269 U.S. 422, 441-42 (1926).
The district court noted that the parties did not dispute that all events had
occurred to establish the fact of the New Mexico state tax liability, meeting the
first prong of the test. The court also determined that the Trustee had met the
third prong, finding that there was economic performance for the unpaid state
income tax liability. However, regarding the second prong, the court ruled that
the amount of the liability could not be determined with reasonable accuracy.
This conclusion rested on an interpretation of Consolidated Industries, Inc. v.
Commissioner, 82 T.C. 477 (1984), aff’d per curiam, 767 F.2d 41 (2d Cir. 1985).
In Consolidated Industries, the Tax Court considered whether an accrual-
method corporate taxpayer could deduct from its 1976 federal taxes additional
Connecticut state taxes due for 1976, which stemmed from an adjustment in
1983 to the taxpayer’s 1976 federal taxes. Id. at 478. The court noted that if a
tax adjustment is contested, “accrual of the deduction must be deferred until
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No. 08-10006
either the dispute is resolved or the liability is paid.” Id. at 480. The court
reasoned that based on Connecticut’s tax structure, “Federal tax liability and
Connecticut tax liability . . . inevitably move in tandem. Accordingly, contest of
a Federal tax deduction is effectively a contest of the State tax liability.” Id. at
482. The court held that the taxpayer could not deduct the additional state taxes
for 1976 because, by asserting a contest to its federal taxes, it was also
challenging its state taxes, meaning that a dispute regarding the state taxes had
not been resolved. Id. at 483. The taxpayer therefore could take the deduction
only in the year it resolved the federal contest. See Consol. Indus., Inc., 767 F.2d
at 42. Based on this decision, the district court here ruled that because the state
and federal tax liabilities “move[d] in tandem,” “a contest of one is necessarily
a contest of the other, and the amount of a contested liability cannot be
determined with reasonable accuracy.” O’Cheskey, 2007 WL 2907821, at *9
(citing Consol. Indus., Inc., 82 T.C. at 482).
The Trustee attempts to distinguish Consolidated Industries by noting
that the corporation in that case was not in bankruptcy but was an ongoing
business entity that could recoup the additional tax payments in subsequent
years. However, the court in Consolidated Industries did not rest its holding on
the fact that the taxpayer was a solvent corporation. Instead, the court simply
stated that the state taxes were dependent on the federal taxes, and therefore
that the taxpayer could not take a deduction for the state taxes until the federal
tax contest had fixed the state tax liability. Consol. Indus., Inc., 82 T.C. at 482.
There is no basis for concluding that the outcome in Consolidated Industries
would have been different had the corporation been insolvent.
The Trustee also cites Snider v. Commissioner, 453 F.2d 188 (5th Cir.
1972), in an attempt to bolster his argument. There, this court considered
whether an accrual-based partnership could deduct a loss in 1965, when it
entered into a contract to sell its lumber mill, or if it had to take the deduction
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No. 08-10006
in 1966, when it delivered the bill of sale and received the money. Id. at 189.
The court focused on “the contract of sale, the agreement on lease terms, and the
fixing with reasonable accuracy of the amount of the loss on the sale, all of which
had occurred by 5:00 p.m. December 31, 1965.” Id. at 190. The court explicitly
held that the amount of the deduction “could be determined with . . . virtually
precise accuracy” in 1965, especially because “at 5:00 pm on December 31, 1965,
. . . the Partnership closed its books and ceased to do business.” Id. at 191(internal quotation marks omitted). Thus, the January closing of the sale was
“a formality rather than the event that fixed the liability of the parties.” Id. at
192.
Snider does not assist the Trustee. Here, the amount of unpaid New
Mexico state taxes has never been fixed, which is unlike the amount of loss that
the partnership incurred based on the sale of the lumber mill. The amount of
the New Mexico state taxes is wholly dependent on the federal tax liability.
Thus, although there is no dispute that the Trustee will be liable for the state
taxes, the amount still must be ascertained based on the Trustee’s federal tax
liability for 1995.
Accordingly, the Trustee cannot meet the all events test of 26 C.F.R.
§ 1.461-1(a)(2)(i). Even if all of the events have occurred to establish the fact of
the liability, and even if economic performance occurred with respect to the
liability, the amount of the liability cannot be determined with reasonable
accuracy until the federal tax issues are resolved. Therefore, we affirm the
district court’s decision on this issue.
IV. CONCLUSION
We AFFIRM the district court’s decision that the distributions to Regency
were for a return of equity and therefore are not deductible; REVERSE the
district court’s judgment that the bankruptcy court exceeded the scope of the
remand and REMAND for a calculation of the Trustee’s taxes when taking into
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No. 08-10006
account the relevant 1995, 1996, and 1997 payments; and AFFIRM the district
court’s decision that the Trustee cannot deduct the unpaid New Mexico state
taxes from his 1995 federal taxes.
AFFIRMED IN PART; REVERSED IN PART, REMANDED.
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