G.M. Trading Corporation v. Commissioner , 106 T.C. No. 13 ( 1996 )

106 T.C. No. 13UNITED STATES TAX COURT
G.M. TRADING CORPORATION, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent*
Docket No. 6983-91. Filed April 17, 1996.
On reconsideration, we decline to alter
any of the findings of fact or conclusions of
law set forth in our prior opinion at 103
T.C. 59 (1994). Supplemental findings of
fact and conclusions of law made.
Held, we adhere to our prior holding
that petitioner is to be treated as having
realized a taxable gain on the exchange of
U.S. dollar-denominated Mexican Government
debt for Mexican pesos. We also adhere to
our prior findings and conclusions regarding
the value of the pesos received and the
amount of gain realized.
This opinion supplements our prior opinion, G.M. Trading
Corp. v. Commissioner, 103 T.C. 59 (1994).
- 2 -
R. James Curphy, for petitioner.**
T. Richard Sealy III, for respondent.
SUPPLEMENTAL OPINION
SWIFT, Judge: This matter is before us on reconsideration
of our opinion at 103 T.C. 59 (1994), in which we concluded that
petitioner realized a taxable gain in connection with a "Mexican
debt-equity-swap" transaction. On October 13, 1994, we granted
petitioner's motion for reconsideration, and we requested that
petitioner and respondent file briefs on the points raised in
petitioner's motion for reconsideration. We also allowed amici
briefs to be filed by Chrysler Corp. and by Harold L. Adrion.
On reconsideration, petitioners and the amici curiae make
three primary arguments: (1) That the value of the Mexican pesos
that were received by petitioner (or by Procesos, petitioner's
Mexican subsidiary corporation) did not exceed petitioner's U.S.
dollar cost of participating in the transaction and that
petitioner, therefore, realized no gain on the transaction;
(2) that the transaction should not be viewed as a taxable
exchange because petitioner could not legally own an interest in
the U.S. dollar-denominated debt of the Mexican Government; and
(3) that if gain was realized over petitioner's cost of
participating in the transaction, such gain should be regarded,
Briefs amici curiae were filed by James P. Fuller, Kenneth
B. Clark, and Jennifer L. Fuller, as attorneys for Chrysler
Corp., and by Harold L. Adrion.
- 3 -
under section 118, as a nontaxable capital contribution by the
Mexican Government to petitioner or to Procesos.
We have considered the arguments and voluminous material
submitted by petitioner, by the amici curiae, and by respondent.
We, however, remain convinced as to the correctness of our prior
findings and opinion. Accordingly, we decline to alter any of
the findings of fact or conclusions of law set forth in our prior
opinion.
Our prior opinion explained the general nature of the
Mexican debt-equity-swap transaction that is at issue in this
case, and we will not repeat that explanation. We, however, do
make herein a number of supplemental findings of fact and
conclusions of law, and we provide additional explanation for our
opinion, as set forth below.
For convenience, we combine our supplemental findings of
fact and conclusions of law.
All section references are to the Internal Revenue Code in
effect for the year in issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure.
Value of Mexican Pesos
It is argued by petitioner and by the amici curiae that the
fair market value of the Mexican pesos that petitioner or
Procesos, as petitioner's designee, received to construct and to
operate a lambskin processing plant in Mexico should be presumed
to be equal to or measured by petitioner's US$634,000 cost of
participating in the transaction. We disagree. We continue to
- 4 -
believe that the fair market value of the Mexican pesos should be
governed by the fair market US$/Mex$ exchange rate that existed
on November 5, 1987.
In order to participate in this transaction and to receive
Mex$1,736,694,000 to invest in Mexico, petitioner incurred not
only a hard currency cost of US$634,000, but petitioner also --
(1) agreed to transfer to the Mexican Government for
cancellation the US$1,200,000-denominated debt that
petitioner purchased from the NMB Nederlandsche
Middenstandsbank N.V. Bank (NMB Bank);
(2) agreed to invest in Mexico all of the Mexican pesos
that were received; and
(3) agreed to provide jobs for Mexican nationals at the
lambskin processing plant to be constructed in Mexico.
Even though these three additional elements did not have an
immediate hard currency cost to petitioner and did not increase
petitioner's tax basis or tax cost in the transaction, such
additional elements provided by petitioner to the Mexican
Government represented valuable and material aspects of the
transaction and should not be ignored if we are to properly value
the currency consideration received by petitioner (namely, the
Mex$1,736,694,000). Petitioner's argument (and that of the amici
curiae) that the Mexican pesos are presumed equal to petitioner's
US$634,000 currency cost of participating in this transaction
ignores the value of these significant additional elements provided
by petitioner.
Petitioner's purchase of the US$1,200,000 Mexican Government
debt and petitioner's transfer of this debt to the Mexican
- 5 -
Government for cancellation, without the Mexican Government
spending any U.S. dollars, constituted a primary purpose of this
transaction. If the financial interests of the Mexican
Government would have been just as well-served (as the amici
curiae apparently contend) by the Mexican Government itself
purchasing for US$600,000 the US$1,200,000 Mexican Government
debt and then canceling that debt, perhaps the transaction could
have been so structured.
To the contrary, however, the transaction was structured so
that the US$1,200,000 Mexican Government debt would be canceled
without the Mexican Government using any of its limited supply of
U.S. dollars and also without any of the Mexican pesos that were
used in the transaction leaving Mexico. From the standpoint of
both petitioner and the Mexican Government, these two features or
benefits of the transaction, made possible by the additional
elements provided by petitioner as described above, shape the
form and substance of the transaction before us.
We therefore believe that it would be artificial to presume,
as petitioner and the amici curiae would have us do, that the
value of the Mex$1,736,694,000 (the currency consideration
received by petitioner or by Procesos, as petitioner's designee,
for participating in this transaction) equals petitioner's
US$634,000 cost of purchasing the US$1,200,000 Mexican Government
debt and transferring the debt to the Mexican Government. This
argument ignores that in reality the Mexican Government acquired
- 6 -
from petitioner not only the surrender of the debt, but also the
additional three elements identified above.
Respondent, in her brief, accurately describes petitioner's
taxable gain from engaging in this transaction as follows:
In a traditional, private market transaction, for
US$600,000 petitioner would have obtained no more than
Mex$998,100,000 based on the free-market exchange
peso/dollar exchange rate at the time [of] the
Debt/Equity Swap * * * which would have allowed it to
have acquired land and build a plant worth only
US$600,000. Instead, using the Debt/Equity Swap, * * *
[petitioner] obtained Mex$1,736,694,000 for the same
amount of money, allowing it to build a plant worth
US$1,044,000. The increase obtained as a result of the
swap was Mex$738,594,000 (Mex$1,736,694,000 less
Mex$998,100,000) which, on the date of the Debt/Equity
Swap, was equal in value to US$444,000 (Mex$738,594,000
divided by 1,663.50 (pesos/dollar free-market exchange
rate on date of swap)), which is precisely the amount of
gain which respondent contends petitioner realized on the
transaction (fair market value of Mex$1,736,694,000
received in exchange for the US$1,200,000 Face Amount
Mexican Debt (US$1,044,000) less amount paid for the debt
(US$600,000)), less US$34,000 of transaction costs.
More broadly, if the “restricted pesos” which
petitioner obtained were worth no more than the
US$600,000 which * * * [petitioner] paid for the debt,
why then did * * * [petitioner] even go to the trouble
of participating in the Debt/Equity Swap? Completing
the swap involved a good deal of time and expense for
petitioner--a detailed application had to be submitted,
negotiations with relevant Mexican Government agencies
had to be conducted, and approvals had to be obtained.
If what was received as a result of the swap was no
more valuable than what could have been obtained
outside of it, why was it done? The answer is obvious
--petitioner went to the trouble of participating in the
swap because of the added value which it obtained through
so doing. * * * This added value * * * [constitutes] a
realized gain for federal income tax purposes, and no
provision of the internal revenue laws exempts it from
recognition. [Emphasis added.]
- 7 -
Respondent's above explanation is consistent with the
following summary of the "basics" of debt-equity-swap
transactions, viewed from the U.S. taxpayer's perspective, as set
forth in an attachment to the brief of Chrysler, as amicus
curiae:
At its simplest, a debt-equity swap (also known as
a debt conversion) involves the purchase by a firm,
usually foreign, of sovereign debt at a discount in the
secondary market from the bank holding it. The issuing
country then buys back the debt in local currency at
close to its face value. The firm spends the local
currency received in an approved manner within the
country, usually to finance a fixed equity investment.
Since the prepayment of the obligation is made at a
substantial discount and the local funds are obtained
at a much smaller discount, firms can realize a
significant gain on the spread. [Business
International Corp., Debt-Equity Swaps: How To Tap an
Emerging Market (1987). Emphasis added.]
With regard to the value of the Mex$1,736,694,000 that was
received, petitioner and the amici curiae argue strenuously that
the Court in our prior opinion improperly considered subjective
factors to minimize the effect of certain restrictions on the use
of the Mexican pesos and that such subjective factors are not
properly considered in the hypothetical, willing buyer/willing
seller scenario that typically governs a determination of fair
market value. We disagree.
The fact that petitioner and Procesos entered into the
transaction for the very purpose of obtaining Mexican pesos to
construct and to operate a lambskin processing plant in Mexico is
an undisputed fact of this transaction. There is nothing
subjective about this fact other than that it relates generally
- 8 -
to the undisputed intent of representatives of petitioner and of
Procesos. This fact and the requirements relating to the use of
the pesos reflect the transaction negotiated and bargained for by
the parties -- by petitioner, by Procesos, and by the Mexican
Government.
In the present case, where petitioner negotiated for a
principal amount of a recognized currency in order to invest that
currency in a specific project, we do not believe that the terms,
requirements, and limitations set forth in the final negotiated
agreement regarding use of the currency (which simply reflect and
conform to the original and continuing purpose and objective of
the transaction -- namely, to invest the currency in a specific
project) should be regarded as restricting or discounting the
fair market value of the currency that is then made available
under the agreement.
The restrictions relating to petitioner's and to Procesos'
access and use of the Mexican pesos and to certain class B stock
in Procesos were consistent with the overall purpose and
objective of each party to the transaction. They were consistent
with the business objectives of each party. In our judgment, as
we stated in our prior opinion, they were not significantly
different from restrictions commonly placed by financial
institutions on loan proceeds and on startup companies in
disbursing loan proceeds relating to construction loans or
project financing.
- 9 -
Petitioner and the amici curiae cite numerous cases in
support of their argument that a fair market valuation of
property generally should not take into account subjective
factors (such as the intended use of the property). Properly
read, however, the cases cited do not stand for the proposition
that all subjective elements in a transaction (such as the intent
of the parties and the purpose for the transaction) should be
disregarded in determining fair market value. Rather, the cases
cited stand for the limited proposition that blatantly self-
serving, subjective testimony and evidence offered in an attempt,
after the fact, to revalue a transaction contrary to its
recognized market value will be rejected.
In Rooney v. Commissioner, 88 T.C. 523, 527 (1987), because
of alleged subjective “circumstances [that] compelled * * * [the
taxpayers] to accept * * * goods and services at prices higher
than they would otherwise pay”, the taxpayers attempted to value
the goods and services at less than the recognized market value
therefor. The Court in Rooney rejected this argument, stating
that “petitioners may not adjust the acknowledged retail price of
the goods and services received merely because they decide among
themselves that such goods and services were overpriced". Id. at
528; accord Baker v. Commissioner, 88 T.C. 1282, 1289 (1987).
The taxpayer's argument in Koons v. United States, 315 F.2d
542 (9th Cir. 1963), perhaps best reflects petitioner’s argument
in this regard. In Koons, an employer paid moving expenses of
the taxpayer. The taxpayer conceded that the value of the moving
services was includable in his gross income but attempted to
- 10 -
value the services at less than the employer’s cost. The
taxpayer speculated that he personally could have paid less to
move himself than his employer had paid, that the services
received were therefore worth less to him, and that he should not
have to report the services at their recognized value. The court
rejected this argument because the taxpayer "had no obligation to
accept these [moving] services, * * * [he] did accept them, this
being a part of the bargain with * * * [his employer], and * * *
the services were in fact rendered and were paid for [by his
employer] at the fair market value.” Id. at 545.
A superficial reading of Landau v. Commissioner, 7 T.C. 12(1946), may appear to support petitioner’s position. Therein,
however, South African pounds1 received as a gift were subject to
preexisting limitations on their removal from South Africa. The
taxpayer had no control over these restrictions. The
restrictions were not the product of negotiations and bargaining
by the parties, and the Court found that the fair market value of
the South African pounds received as a gift should be discounted
to reflect the preexisting restrictions.
The present case is somewhat analogous to cases involving
the valuation of stock includable in a gross estate where the
stock, on the date of decedent's death, is subject to a
restrictive stock purchase agreement at a specified price.
Typically, in such cases, the taxpayers argue (in light of the
preexisting restrictions that are applicable to the stock) for a
South African currency is now measured in rands.
- 11 -
valuation consistent with the price specified in the stock
purchase agreement. See, e.g., Estate of Gloeckner v.
Commissioner, T.C. Memo. 1996-148; Estate of Lauder v.
Commissioner, T.C. Memo. 1992-736.
In the instant case, in effect, petitioner (taking into
account the so-called "restrictions" and other characteristics of
the Mexican pesos to be received) and the Mexican Government
(taking into account its U.S. dollar-denominated debt to be
canceled and the perceived economic benefit to be received in
Mexico from construction of a new plant) negotiated for and
agreed to the transfer and receipt of a specified amount of
Mexican pesos (i.e., they agreed to a stated price in the form of
a recognized monetary currency). But petitioner and the amici
curiae (contrary to the typical case involving restrictive stock
purchase agreements where the taxpayer is seeking to adhere to
the price specified in the agreement) now seek to disavow the
stated Mexican peso price that was agreed to and that is
specified in the agreement (namely, Mex$1,736,694,000).
With regard to the transaction before us, it is noteworthy
that during the year at issue broad Mexican Government
restrictions applied generally to investments by U.S. companies
in Mexico.2 Properly viewed, the debt-equity-swap transaction
before us, and the so-called "restrictions" placed on the pesos
received, may be regarded as the opening up of a business
See 1973 Law to Promote Mexican Investment and Regulate
Foreign Investment, as explained in Business International Corp.,
Debt-Equity Swaps: How to Tap an Emerging Market, 54-55 (1987),
which foreign law we take notice of under Rule 146.
- 12 -
opportunity for petitioner in Mexico (i.e., as a reduction in or
elimination of restrictions that otherwise would have prohibited
petitioner's investment in Mexico). Viewed in this light, the
1,736,694,000 bargained-for Mexican pesos received in this
transaction may be regarded, in some respects, as more valuable
to petitioner than pesos that petitioner could have obtained on
the open market because there were attached to these pesos
special, pre-approved business opportunities for petitioner in
Mexico and because the pesos carried with them an interest rate
that protected petitioner from risks associated with inflation in
Mexico and with fluctuations in the US$/Mex$ exchange rate. The
so-called "restrictions" attached to the pesos involved in this
transaction, therefore, in this respect served as enhancements to
the value of the pesos.
Ownership of US$1,200,000 Mexican Government Debt
Petitioner and the amici curiae argue that only banks could
legally own the US$1,200,000 Mexican Government debt and that
petitioner, therefore, should not be treated as having acquired
the debt and as having transferred the debt to petitioner.
Petitioner and the amici curiae also argue that if petitioner is
to be regarded as having acquired the debt, petitioner's interest
therein should be treated as so fleeting and momentary that it
should be disregarded.
Respondent acknowledges provisions of the Restructure
Agreement that place some limitations on assignment of Mexican
Government debt, but respondent notes that none of these
- 13 -
provisions applies to a transfer or assignment of the debt, nor
to the transfer or assignment of a participation therein, by a
bank domiciled in the United States. Respondent also notes that
under New York case law any prohibition on assignment must be
express.
The vague limitations on transferability of Mexican
Government debt on which petitioner relies are largely
meaningless in this case. Under the Debt Participation and
Capitalization Agreement and the Restructure Agreement, the
Mexican Government expressly consented to the transfer of its
US$1,200,000 debt, or of a “participation” therein, to
petitioner. The Mexican Government thereby is to be regarded as
having waived whatever restrictions generally would have applied
to such a transfer of Mexican Government debt to petitioner.
Arguments as to petitioner's alleged lack of an ownership
interest in the debt are clearly erroneous and are rejected.
Similarly, the argument must be rejected that any ownership
interest or participation of petitioner in the debt occurred for
such a momentary period of time that such interest or
participation should be disregarded. It was petitioner's
provision of the US$600,000 that caused the NMB Bank to
relinquish the US$1,200,000 Mexican Government debt -- hardly an
economic fact that we can ignore.
It does appear that another New York-based bank did act as a
mere agent in the debt-equity-swap transaction before us. That
bank’s mere agency role has been ignored for purposes of the
- 14 -
substance of the transaction. Petitioner’s substantial economic
role in the transaction, however, will not be disregarded.
Capital Contribution of Alleged Excess Value
Petitioner and the amici curiae argue that any value
petitioner may have realized over its US$634,000 hard dollar cost
of participating in the transaction (referred to by petitioner as
"excess value") should be treated, under section 118, as a
nontaxable capital contribution by the Mexican Government to
petitioner or to Procesos.
Petitioner's argument oversimplifies and neglects important
facts relating to the nature of this transaction and to the
consideration paid and received by petitioner, on the one hand,
and by the Mexican Government, on the other.
Petitioner did not transfer US$600,000 to the Mexican
Government. Rather, petitioner provided those U.S. dollars to a
commercial bank in exchange for U.S. dollar-denominated debt of
the Mexican Government with a face amount of US$1,200,000.
Petitioner then exchanged not the US$600,000 in cash but the
US$1,200,000 Mexican Government debt for Mex$1,736,694,000. As a
further, significant element of the transaction, petitioner was
also given Mexican governmental permission to construct a
lambskin processing plant in Mexico, and petitioner was provided
pesos at a very favorable exchange rate. The Mexican Government
was relieved of its US$1,200,000 debt without using its limited
supply of U.S. dollars, and it obtained a commitment that the
Mexican pesos it provided would stay in Mexico.
- 15 -
On these facts, it is clear that the Mexican Government, as
a result of and in return for its participation in this
transaction and for the "excess value" it provided, received
direct, specific, and significant economic benefits that related
primarily to its perilous foreign exchange position.
As we said in Federated Dept. Stores v. Commissioner, 51
T.C. 500, 519 (1968), affd. 426 F.2d 417 (6th Cir. 1970), tax-
free capital contribution treatment under section 118 is
available where the "only benefit" anticipated and received by
the governmental entity making the "contribution" constitutes an
indirect civic benefit such as anticipated increased business.
In Brown Shoe Co. v. Commissioner, 339 U.S. 583 (1950),
contributions or payments by a governmental entity to assist a
taxpayer in financing construction of a factory were not made in
exchange for, nor accompanied by, extinguishment of the
governmental entity's million dollar debt obligation.
Perhaps, if the Mexican Government merely had transferred
the Mexican pesos to Procesos in exchange for petitioner's
commitment to use the pesos to construct a plant in Mexico,
receipt of the pesos would qualify under section 118 as a tax-
free contribution of capital. The Mexican Government, however,
in the transaction before us, did not provide the pesos merely in
exchange for a commitment to construct a plant in Mexico. It
also received cancellation of its US$1,200,000 debt obligation
without using any U.S. dollars, and the pesos that it provided
remained in Mexico. The surrender of the debt constitutes a
- 16 -
quid pro quo that taints what otherwise may have qualified under
section 118 as a tax-free contribution of capital.
Petitioner and the amici curiae argue that the Court
misapplies the step transaction doctrine. Petitioner cites J.E.
Seagram Corp. v. Commissioner, 104 T.C. 75 (1995). To the
contrary, we believe we have followed the reasoning of that case
by taking into account the "overall" transaction at issue. Id.
at 94.
As we understand it, the overriding function of the step
transaction doctrine is to combine individually meaningless or
unnecessary steps into a single transaction. See Tandy Corp. v.
Commissioner, 92 T.C. 1165, 1172 (1989); Esmark, Inc. v.
Commissioner, 90 T.C. 171, 195 (1988), affd. without published
opinion 886 F.2d 1318 (7th Cir. 1989).
However, a step in a series of transactions or in an overall
transaction that has a discrete business purpose, a discrete
economic significance, and that appropriately triggers an
incident of Federal taxation, is not to be disregarded. Further,
the simultaneous nature of a number of steps does not require all
but the first and the last (or "the start and finish") to be
ignored for Federal income tax purposes. Tandy Corp. v.
Commissioner, supra at 1172 (“step transaction doctrine is not
appropriate in every transaction that takes place in one or more
steps”); Rev. Rul. 79-250, 1979-2 C.B. 156, 157 (“the substance
of each of a series of steps will be recognized * * * if each
such step demonstrates independent economic significance, is not
subject to attack as a sham, and was undertaken for valid
- 17 -
business purposes”); 11 Mertens, Law of Federal Income Taxation,
secs. 43.254-43.255 (1990 rev.). Under the facts of this case,
the step transaction doctrine does not require the Court to
disregard the gain realized by petitioner upon receipt of the
pesos.
Petitioner and the amici curiae make a number of additional
arguments. We find them to be without merit. Also, the amici
curiae seek to raise a number of new issues not raised in the
petition in this case. We decline to address issues not raised
in the pleadings and not properly before us.
For the reasons stated, we decline to alter the result
reached in our opinion reported at 103 T.C. 59.
Decision will be entered
under Rule 155.