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SALUS MUNDI FOUNDATION, TRANSFEREE, ET AL.,Salus Mundi Found. v. Comm'rDocket Nos. 24741-08, 24742-08, 24743-08.
United States Tax Court T.C. Memo 2012-61; 2012 Tax Ct. Memo LEXIS 58; 103 T.C.M. (CCH) 1289;March 6, 2012, FiledDiebold v. Comm'r, T.C. Memo 2010-238">T.C. Memo 2010-238 , 2010 Tax Ct. Memo LEXIS 271">2010 Tax Ct. Memo LEXIS 271 (T.C., 2010)*58Decisions will be entered for petitioners.
Allen Duane Webber ,Summer M. Austin ,Jaclyn J. Pampel ,Caitlin A. Urban ,Ryan J. Kelly , andPhillip J. Taylor , for petitioners.John Richard Mikalchus , for respondent.GOEKE, Judge.GOEKEMEMORANDUM FINDINGS OF FACT AND OPINION GOEKE,
Judge : In separate statutory notices of liability, respondent determined that the Salus Mundi Foundation, the Diebold Foundation, Inc. (Diebold Foundation (Connecticut)), and the Ceres Foundation, Inc. (collectively, petitioners) are liable as transferees of the assets of the Diebold Foundation, Inc. (Diebold Foundation), of $33,542,496section 6901 section 6662 accuracy-related penalty owed by Double-D Ranch for the July 2, 1999, taxable year and (2) whether petitioners are liable as transferees of a transferee pursuant tosection 6901 for the unpaid Federal income tax andsection 6662 accuracy-related *59 penalty owed by Double-D Ranch for the July 2, 1999, taxable year. For the reasons stated herein, we find that the Diebold Foundation is not liable as a transferee undersection 6901 and therefore petitioners are not liable as subsequent transferees undersection 6901 .section 501(c)(3) private foundations organized in Arizona, Connecticut, and South Carolina on October 22, July 12, and May 25, 1999, respectively. They received all of the assets of the Diebold Foundation *60 in equal shares pursuant to the Diebold Foundation's "Plan of Dissolution and Distribution of Assets" during the Diebold Foundation's October 31, 2001, taxable year.I. The Double-D Ranch Shareholders—the Marital Trust and the Diebold Foundation The Dorothy R. Diebold Marital Trust (marital trust) was created upon the death of Richard Diebold on June 18, 1996, in which Mrs. Diebold was the sole beneficiary. At the time of Mr. Diebold's death, the marital trust owned all issued and outstanding shares of stock (3,835 shares) in the Double-D Ranch. The marital trust had three cotrustees: (1) Mrs. Diebold; (2) Bessemer Trust Co., N.A. (Bessemer Trust); and (3) Andrew W. Bisset. Bessemer Trust was a national bank that served as trustee, asset custodian, and investment adviser to the marital trust. Austin Power, Jr., a senior vice president at Bessemer Trust, served as counsel and account manager for both the marital trust and Mrs. Diebold. Mr. Power was Bessemer Trust's representative in its role as trustee of the marital trust. Mr. Bisset is an attorney licensed to practice law in Connecticut and New York who served as Mrs. Diebold's personal attorney after her husband's death.
The Diebold *61 Foundation was a
section 501(c)(3) charitable organization organized and incorporated on November 12, 1963, under the laws of the State of New York. Its directors in 1999 were Mrs. Diebold, Mr. Bisset, and Mrs. Diebold's three children. At the request of Mrs. Diebold, on May 28, 1999, approximately one-third of the outstanding stock of Double-D Ranch (1,280 shares) was transferred from the marital trust to the Diebold Foundation. Until July 2, 1999, the marital trust and the Diebold Foundation (collectively, the Double-D Ranch shareholders) owned all of the stock of Double-D Ranch—they held 2,555 shares and 1,280 shares, respectively.II. Double-D Ranch From at least July 2, 1997, until their resignation effective July 1, 1999, Double-D Ranch's directors were Mrs. Diebold, her three children, Mr. Bisset, and Mr. Power. The assets of Double-D Ranch consisted primarily of: (1) stock in American Home Products (AHP), a publicly traded company; (2) stock in other publicly traded companies; (3) U.S. Treasury securities; (4) cash; and (5) real estate.*62 The various securities and real estate had high fair market values, but low tax bases.
III. The Decision To Sell Double-D Ranch At some point in May or early June 1999, the cotrustees of the marital trust and the directors of the Diebold Foundation decided to sell the stock of Double-D Ranch. Mr. Power was primarily responsible for implementing the sale of the stock. Stephen A. Baxley, a senior vice president in Bessemer Trust's tax department, and Morton Grosz, Richard Leder, and Adam Braverman assisted in the sale. Messrs. Grosz, Leder, and Braverman were attorneys at Chadbourne & Parke, LLP, a nationally known law firm. Messrs. Power, Baxley, Grosz, Leder, and Braverman (collectively, Double-D Ranch representatives) represented Double-D Ranch throughout the stock sale process.
The Double-D Ranch representatives discussed the sale with two groups of purchasers: (1) James M. Rhodes, Harry Zelnick, and Ari Bergmann (collectively, Shap II*63 market values but low tax bases. While it is not entirely clear what details were discussed at these meetings, the parties did address: (1) the valuation method for the AHP stock; (2) the financial statements, tax returns, and contracts that the seller would need to provide the purchaser; and (3) the real estate held by Double-D Ranch.
The Double-D Ranch representatives ultimately decided to sell the Double-D Ranch stock to the Shap II representatives and gained the approval of Mrs. Diebold and her children in their various capacities. The Shap II representatives created Shap Acquisition Corp. II (Shap II) to serve as the acquirer of the Double-D Ranch stock, with Mr. Rhodes and Mr. Zelnick serving as Shap II's directors and officers. While it is not clear at what level of detail the parties discussed the structure of the transaction, the Double-D Ranch representatives assumed that Shap II would use some form of tax strategy to offset the built-in gains in Double-D Ranch's assets.
IV. The Letter of Intent and the Valuation of Double-D Ranch Representatives from both the seller and the purchaser *64 negotiated the price and drafted the transaction documents. On June 17, 1999, Shap II and the Double-D Ranch shareholders executed a letter of intent confirming the terms of the stock sale. The letter of intent was signed by Mr. Rhodes, Mr. Power, and Mr. Bisset, acting on behalf of Shap II, the marital trust, and the Diebold Foundation, respectively.
Attached to the letter of intent was a term sheet defining the terms of the sale. The term sheet reflected that Shap II*65 above, Double-D Ranch held mostly marketable securities and real estate. An appraiser valued the real estate at $6,340,000 on July 2, 1999. Most of the securities were easily valued on various securities exchanges, except for the AHP stock. Because Double-D Ranch owned such a large block of AHP stock, selling it all at once in the stock market would have an impact on the stock's value. Therefore, the parties to the Double-D Ranch stock sale decided to value the AHP stock using the "Volume Weighted Average Price" for the five consecutive trading days before the stock sale closing. The average of the weighted prices was considered the value of the AHP stock.
The Double-D Ranch assets were valued as follows:
Item Amount Cash $21,125,554 AHP stock 129,085,440 Other securities 162,335,803 Land—farm 6,340,000 318,886,797 Double-D Ranch's marketable securities were held in two accounts with Bessemer Trust; the remaining marketable securities were held in an account with the Bank of New York.
V. The Stock Purchase Agreement On June 25, 1999, Shap II and the Double-D Ranch shareholders executed a stock purchase agreement. Mrs. Diebold, Mr. Power (as representative for Bessemer Trust), and Mr. Bisset signed *66 on behalf of the marital trust. Mr. Bisset signed on behalf of the Diebold Foundation, and Mr. Rhodes signed on behalf of Shap II. The stock purchase agreement indicated that the closing for the sale would occur on July 1, 1999. The parties established additional bank accounts to handle the various fund transfers made pursuant to the stock purchase agreement. Finally, the parties agreed in article VII, section 7.3 of the stock purchase agreement that—
[Shap II] will file a consolidated federal income tax return (and, where applicable, state and local tax returns) for the period which includes the Closing Date, which returns will include * * * [Double-D Ranch] from and including the day following the Closing Date * * *. [Shap II] * * * will be responsible for, will pay or cause to be paid, any and all Taxes of * * * [Double-D Ranch] with respect to any taxable period ending after the Closing Date.
VI. The Escrow Agreement On July 1, 1999, the Double-D Ranch shareholders entered into an escrow agreement with Bessemer Trust where: (1) Bessemer Trust would serve as the shareholders' representatives for all matters relating to the stock purchase agreement; and (2) an escrow account would be *67 created with Bessemer Trust whereby Bessemer Trust would act as the escrow agent.
The Double-D Ranch shareholders agreed to deposit a portion of the proceeds from the stock sale into the escrow account for the purpose of satisfying any outstanding business obligations of Double-D Ranch that may have existed before the stock sale. Similarly, Shap II agreed to "hold back" $10 million of the stock purchase price and deposit it in the escrow account. This amount would become payable to the Double-D Ranch shareholders on or before July 9, 1999, subject to any adjustments relating to certain liabilities of Double-D Ranch.
VII. Shap II's Financing Shap II financed its purchase of the Double-D Ranch stock with a loan from Rabobank Nederland (Rabobank). Rabobank issued a loan commitment letter to Shap II indicating: (1) its agreement to lend up to $325 million for the acquisition of the Double-D Ranch stock; (2) that the loan was to mature no later than 30 days from closing; and (3) as collateral for the loan, Shap II would grant Rabobank a first priority lien on the stock of Double-D Ranch and any property Shap II "now has or hereafter shall have any interest, as well as other collateral as mutually *68 acceptable." A copy of the commitment letter was provided to the Double-D Ranch representatives on June 22, 1999. The Double-D Ranch shareholders and their representatives were not listed as a party to the financing agreements between Rabobank and Shap II.
Rabobank imposed certain conditions as part of its agreement to lend the $325 million. The biggest condition was that Shap II enter into a binding agreement to sell the Double-D Ranch assets after Shap II purchased Double-D Ranch's stock. To that end, Shap II and Morgan Stanley executed a document titled "Execution by Morgan Stanley of Volume-Weight Average Price and Market-on-Close Trades on Risk Basis" (Shap II-Morgan Stanley sale agreement). Pursuant to this agreement, Morgan Stanley agreed to purchase and Shap II agreed to deliver 2.4 million shares of AHP stock and various other securities (or their cash equivalent) to Morgan Stanley on the "closing date"*69 stock sale. Neither Double-D Ranch nor the Double-D Ranch shareholders were a party to this agreement. On June 29, 1999, Shap II opened an account with Morgan Stanley to receive custody of the marketable securities owned by Double-D Ranch.The Stock Sale Closing
The closing was delayed from July 1 to July 2, 1999, and the stock purchase agreement was amended accordingly. Pursuant to the amended stock purchase agreement, Shap II would pay $307 million for the Double-D Ranch stock—$297 million payable immediately and $10 million held back and placed in escrow.
Shap II became the owner of all the shares of Double-D Ranch stock on July 2, 1999, after the execution of various closing documents and the requisite money transfer of $297 million to the escrow account at Bessemer Trust.*70
infra ): (1) the notice of pledge and security agreement; (2) the transfer agreement; and (3) the letter agreement. At the time of the Double-D Ranch stock sale, Double-D Ranch owned, controlled, and possessed assets having a fair market value well in excess of its liabilities.The transfers of Double-D Ranch's assets were arranged as follows: (1) custody of the assets held by the Bank of New York were to be transferred to Shap II's Morgan Stanley account on July 6, 1999, after the Bank of New York received written confirmation from Mr. Bisset that the stock sale was consummated; and (2) custody of the assets held by Bessemer Trust were to be transferred to Shap II's Morgan Stanley account on July 6, 1999, pursuant to a letter agreement (transfer agreement) executed on July 2, 1999, between Bessemer Trust, Double-D Ranch, and Shap II. The transfer agreement irrevocably instructed Bessemer Trust to transfer custody of Double-D Ranch's assets to Shap II's Morgan *71 Stanley account and "to not honor any other request or instruction which would cause Bessemer to be unable to make such transfer."
Moreover, the closing documents included an option contract between Double-D Ranch and Toplands Farm, LLC (Toplands Farm).
Item Date Amount Payment at closing 7/2/1999 $297,000,000 Hold back and adjustment 7/9/1999 11,556,321 Price adjustment 7/12/1999 608,800 Price adjustment 7/12/1999 34,066 Total 309,199,187 The *72 following amounts were distributed from the escrow account to the marital trust:
Item Amount Distribution—7/6/1999 $183,879,480 Distribution—7/12/1999 8,276,028 Distribution—11/8/1999 10,541,167 Distribution—3/26/2004 3,754,850 Distribution—4/15/2004 6,989 Total 206,458,514 The following amounts were distributed from the escrow account to the Diebold Foundation:
Item Amount Distribution—7/6/1999 $92,120,520 Distribution—7/12/1999 4,156,098 Distribution—11/8/1999 5,280,900 Total 101,557,518 The transfers from the escrow account at Bessemer Trust to the marital trust and the Diebold Foundation were made pursuant to the escrow agreement. The 2004 distributions to the marital trust corrected a misallocation made at the time of the stock sale.
IX. Post-Closing Transfers On July 2, 1999, following the close of the Double-D Ranch stock sale: (1) Mr. Rhodes executed a letter agreement (the letter agreement) that irrevocably instructed Bessemer Trust to transfer custody of Double-D Ranch's assets to Morgan Stanley on July 6, 1999, in settlement of the Shap II-Morgan Stanley sale agreement made on June 25, 1999; (2) Mr. Rhodes, as president of Shap II, sent a letter to Morgan Stanley instructing them to transfer $258,546,764 *73 to Shap II's Rabobank account on July 6, 1999; and (3) Morgan Stanley and Double-D Ranch entered into a "Pledge and Security Agreement" which granted Morgan Stanley a security interest in the assets held in Double-D Ranch's Bessemer Trust account. Pursuant to the pledge and security agreement, Morgan Stanley agreed that it would not take possession of the assets before July 6, 1999. Mr. Rhodes sent notice of the pledge and security agreement to Bessemer Trust on July 2, 1999. Neither the Double-D Ranch shareholders nor their representatives were a party to the pledge and security agreement.
On July 6, 1999, Bessemer Trust and the Bank of New York transferred Double-D Ranch's assets to Shap II's Morgan Stanley account. Shortly thereafter Rabobank's loan was repaid. Shap II received the following from its sales of the Double-D Ranch assets:
Item Amount Securities $291,230,614 Land 6,340,000 Cash 21,126,554 Total 318,697,168 X. Return Filings The Double-D Ranch shareholders timely filed returns that reflected the sale of their Double-D Ranch stock to Shap II on July 2, 1999. The Diebold Foundation reported capital gain with respect to the sale of its 1,280 shares on Form 990-PF, Return of Private *74 Foundation, for its taxable year ended October 31, 1999.
Double-D Ranch timely filed Form 1120, U.S. Corporation Income Tax Return, for its short taxable year ended July 2, 1999, and checked the "final return" box on the return. This return did not report any of Double-D Ranch's asset sales made after the July 2, 1999, stock sale between the Double-D Ranch shareholders and Shap II.
Shap II timely filed a consolidated income tax return with Double-D Ranch for its taxable year ended on June 30, 2000. Shap II's return reported all of the asset sales made by Double-D Ranch between July 2, 1999, and June 30, 2000, but also reported artificial losses,Procedural History
On March 10, 2006, respondent issued a notice of deficiency to Double-D Ranch, determining a deficiency in income tax of $81,120,064 and a
section 6662 penalty *75 of $16,224,012 for the short taxable year ended on July 2, 1999. Respondent determined that the sale of Double-D Ranch's stock by the Double-D Ranch shareholders to Shap II should not be respected for Federal income tax purposes. Respondent determined that in substance the stock sale was really a sale of Double-D Ranch's assets followed by a liquidating distribution to the Double-D Ranch shareholders. While the notice of deficiency was issued after the three-year period of limitations, respondent contends that the six-year period of limitations undersection 6501(e) applies.Item Amount Tax $81,120,064 Sec. 6662 penalty 16,224,013 Interest 3,171,631 Respondent could not find any assets of Double-D Ranch from which to collect the assessed liability and determined that any additional efforts would be futile.
On August 7, 2007, respondent issued a *76 notice of liability to Mrs. Diebold as the transferee of the assets of Double-D Ranch in the amount of $97,344,077 for the corporate income tax, penalty, and accrued interest assessed against Double-D Ranch for the taxable year ended July 2, 1999. Mrs. Diebold timely filed a petition, and a trial was held. In
Diebold v. Commissioner , T.C. Memo 2010-238">T.C. Memo 2010-238Respondent also determined that the Diebold Foundation was liable as a transferee of Double-D Ranch. However, pursuant to its plan of dissolution and distribution of assets effective on January 29, 2001, the Diebold Foundation distributed all of its assets in equal shares to petitioners, resulting in each petitioner's receiving $32,918,670 from the Diebold Foundation.*77 July 11, 2008, respondent issued a notice of liability to each petitioner as a transferee of the assets of the Diebold Foundation in the amount of $33,542,496 for the corporate income tax, penalty, and accrued interest assessed against Double-D Ranch for the taxable year ended on July 2, 1999. Petitioners timely filed petitions in this court, and the cases have been consolidated and are before this court for a decision without trial under
Rule 122 .Section 6901(a)(1) is a procedural statute authorizing the assessment of transferee liability in the same manner and subject to the same provisions and limitations as in the case of the taxes with respect to which the transferee liability was incurred.Section 6901(a)(1) does not create or define a substantive liability but merely provides the Commissioner a remedy for enforcing and collecting from the transferee of the property the transferor's existing liability.Coca-Cola Bottling Co. v. Commissioner , 334 F.2d 875">334 F.2d 875aff'g 37 T.C. 1006">37 T.C. 1006 (1962);Mysse v. Commissioner , 57 T.C. 680">57 T.C. 680Section 6902 andRule 142(d) provide that the Commissioner has the burden of proving the taxpayer's liability as a transferee but not of showing that the transferor was liable for the tax.Under
section 6901(a) the Commissioner may establish transferee liability if a basis exists under applicable State law or State equity principles for holding the transferee liable for the transferor's debts.Commissioner v. Stern , 357 U.S. 39">357 U.S. 39Bresson v. Commissioner , 111 T.C. 172">111 T.C. 172aff'd ,213 F.3d 1173">213 F.3d 1173 (9th Cir. 2000);Frank Sawyer Trust of May 1992 v. CommissionerStarnes v. Commissioner , T.C. Memo 2011-63">T.C. Memo 2011-63Diebold v. Commissioner , T.C. Memo 2010-238">T.C. Memo 2010-238Commissioner v. Stern , 357 U.S. at 45section 6901 provides the remedy or procedure to be employed by the Commissioner as the means of enforcing that liability.Ginsberg v. Commissioner , 305 F.2d 664">305 F.2d 664aff'g 35 T.C. 1148">35 T.C. 1148 (1961).Moreover, transferee liability may be asserted *79 against a transferee of a transferee.
Berliant v. Commissioner , 729 F.2d 496">729 F.2d 496aff'g Magill v. Commissioner , T.C. Memo 1982-148">T.C. Memo. 1982-148Sec. 6901(a) ,(c)(2) ;Commissioner v. Stern , 357 U.S. at 42Stansbury v. Commissioner , 104 T.C. 486">104 T.C. 486aff'd ,102 F.3d 1088 (10th Cir. 1996) . The Commissioner bears the burden of proving that a party is liable as a transferee under State law or in equity.Sec. 6902(a) ;Rule 142(d) ;Gumm v. Commissioner , 93 T.C. 475">93 T.C. 475933 F.2d 1014">933 F.2d 1014 (9th Cir. 1991).I. Parties' Arguments Petitioners argue that they cannot be liable as transferees because respondent failed to issue the notices of liability within the applicable three-year period of limitations set forth in
section 6901(c)(2) , and that the six-year period of limitations insection 6501(e)(1)(A) does not apply because Double-D Ranch did not sell its marketable securities during the July 2, 1999, taxable year. Moreover, petitioners argue that they cannot be liable as transferees because Double-D Ranch itself was *80 not liable for the deficiency and penalty respondent determined in his notice of deficiency for the July 2, 1999, taxable year. Alternatively, if Double-D Ranch is found liable for the income tax and penalty respondent determined in his notice of deficiency, petitioners argue they are not liable under New York fraudulent conveyance law because: (1) Double-D Ranch did not convey any property to the Diebold Foundation; and (2) Double-D Ranch was solvent at the time of its stock sale.Respondent argues that the six-year period of limitations under
section 6501(e) applies to the assessment and collection of Double-D Ranch's liability for the short taxable year ended July 2, 1999, because Double-D Ranch omitted an amount in excess of 25% of gross income stated in the return. Respondent argues that under the substance over form doctrine, the purported sale of Double-D Ranch stock to Shap II must be disregarded and recast as a sale of Double-D Ranch's assets on July 2, 1999, followed by a liquidating distribution of the proceeds to the Diebold Foundation and the marital trust. Therefore, under either New York fraudulent conveyance law or the trust fund doctrine, the Diebold Foundation is liable *81 as a transferee of Double-D Ranch. Respondent concludes that because the Diebold Foundation is liable as a transferee and transferred all of its assets to petitioners for no consideration, petitioners are liable as subsequent transferees of Double-D Ranch.Whether the three-year or the six-year period of limitations applies depends on how we decide to characterize the transaction between the Double-D Ranch shareholders and Shap II.*82 Therefore, we must first determine whether respondent has shown that the transactions surrounding the Double-D Ranch stock sale should be collapsed under the New York Uniform Fraudulent Conveyance Act (NYUFCA) in deciding whether the Diebold Foundation is liable as a transferee. If we find the Diebold Foundation liable as a transferee, then we must determine whether petitioners are liable as transferees of a transferee.
II. New York Uniform Fraudulent Conveyance Act The law of the State where the transfer occurred (in these cases, New York) controls the characterization of the transaction.
See Commissioner v. Stern , 39">357 U.S. at 45See N.Y. Debt. & Cred. Law secs. 273 ,276 (McKinney 2001). The elements of fraudulent conveyance claims under NYUFCA are the same as those under the Federal Bankruptcy Code.Ames Dept. Stores, Inc. v. Wertheim Schroder & Co. (In re Ames Dept. Stores, Inc. ), 161 B.R. 87">161 B.R. 87The constructive fraud provision of NYUFCA provides that "Every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent is fraudulent as to creditors without regard to his actual intent if the conveyance is made or the obligation is incurred without a fair consideration."
N.Y. Debt. & Cred. Law sec. 273 . The party asserting that a transfer should be set aside under this section bears the burden of showing fraud by a preponderance of the evidence.Lippe v. Bairnco Corp. , 249 F. Supp. 2d 357">249 F. Supp. 2d 357N.Y. Debt & Cred. Law sec. 273 *84 requires respondent to prove by a preponderance of the evidence: (1) a conveyance; (2) made without fair consideration; (3) by a person who was or will be rendered insolvent by the conveyance.See United States v. McCombs , 30 F.3d 310">30 F.3d 310A conveyance includes "every payment of money, assignment, release, transfer, lease, mortgage or pledge of tangible or intangible property, and also the creation of any lien or incumbrance."
N.Y. Debt. & Cred. Law sec. 270 (McKinney 2001). Fair consideration is given—a. When in exchange for such property, or obligation, as a fair equivalent therefor, and in good faith, property is conveyed or an antecedent debt is satisfied, or
b. When such property, or obligation is received in good faith to secure a present advance or antecedent debt in amount not disproportionately small as compared with the value of the property, or obligation obtained.
Id. sec. 272 .Fair consideration must be determined "upon the facts and circumstances of each particular case."
Sullivan v. Messer (In re Corcoran) , 246 B.R. 152">246 B.R. 152United States v. McCombs , 30 F.3d at 326N.Y. Debt. & Cred. Law sec. 271 (McKinney 2001), *85 a person is insolvent when the "present fair salable value of his assets is less than the amount that will be required to pay his probable liability on his existing debts as they become absolute and matured.".Respondent's transferee liability claim under NYUFCA is predicated on the assertion that the series of transactions among the Double-D Ranch shareholders, Shap II, Morgan Stanley, and Rabobank should be collapsed and treated as if Double-D Ranch sold all of its assets and then made a liquidating distribution to its shareholders. If the transactions are collapsed accordingly, then Double-D Ranch will have transferred substantially all of its assets to the Diebold Foundation and the marital trust, receiving virtually nothing in exchange, let alone fair consideration. If the preceding is so found, it follows that the Diebold Foundation will be liable as a transferee of Double-D Ranch's assets under
N.Y. Debt. & Cred. Law sec. 273 . While intent is generally irrelevant in a constructive fraud action under NYUFCA, when a party is seeking to recharacterize a transaction or series of transactions for purposes of showing no fair consideration was given the party must prove that the multiple *86 transactions were linked and that the transferee had actual or constructive knowledge of the entire scheme that rendered her exchange with the debtor fraudulent. SeeSullivan , 246 B.R. at 159HBE Leasing Corp. v. Frank , 48 F.3d 623">48 F.3d 623Official Comm. of Unsecured Creditors of Sunbeam Corp. v. Morgan Stanley & Co. (In re Sunbeam Corp.) , 284 B.R. 355">284 B.R. 355Constructive knowledge may be found where the initial transferee became aware of circumstances that should have led to further inquiry into the circumstances of the transaction, but no inquiry was made.
HBE Leasing Corp. , 48 F.3d at 636United States v. Orozco-Prada , 636 F. Supp. 1537">636 F. Supp. 1537aff'd without published opinion ,836">847 F.2d 836 (2d Cir. 1988), others appear to have required a more active avoidance of the truth,see Schmitt v. Morgan , 98 A.D.2d 934">98 A.D.2d 934The "knowledge" requirement reflects the policy of the Uniform Fraudulent Conveyance Act to protect innocent purchasers for value who received the debtor's property without awareness of any fraudulent scheme and is closely connected to the requirement of "good faith". See
Gowan v. Wachovia Bank, N.A. (In re Dreier LLP) , 453 B.R. 499">453 B.R. 499HBE Leasing , 48 F.3d at 636Wachovia Bank , 453 B.R. at 513Christian Bros. High Sch. Endowment v. Bayou No Leverage Fund, LLC (In re Bayou Group, LLC) , 439 B.R. 284">439 B.R. 28411 U.S.C. sec. 548(c) ).HBE Leasing involved the application of NYUFCA in order to collapse multiple transactions on the basis of the knowledge of the transferee. The relevant parties included the debtor corporation, the majority shareholder son, and the mortgagee mother. First, the mortgagee mother made loans to the debtor corporation in exchange for security interests in debtor corporation property. Next, the majority shareholder son had the debtor corporation use the borrowed funds for improper purposes. The primary question was whether these transactions could be collapsed in order to determine whether the debtor corporation received fair consideration in exchange for the security interest granted to the mortgagee mother. The court found that there was sufficient evidence to charge the mortgagee mother with constructive knowledge of the improper expenditures of the borrowed funds (and therefore collapsed the transactions in determining fair consideration under NYUFCA) where: (1) when the mortgagee mother was the director of the debtor corporation, she knew the majority shareholder son had used the debtor corporation as a conduit for making various payments for family *89 and other noncorporate purposes; (2) the mortgagee mother knew the debtor corporation was a defendant in a RICO fraud action; and (3) the mortgagee mother knew that the majority shareholder son had made large loans to the debtor corporation. The court found that the mortgagee mother had constructive knowledge under these circumstances because her "failure to inquire represented a conscious turning away from the subject."HBE Leasing , 48 F.3d at 637In
Sunbeam Corp. , 284 B.R. at 371In re Greenbrook Carpet Co. , 722 F.2d 659">722 F.2d 659Id. at 372On the basis of the authorities discussed, in order to collapse the transactions we must determine whether respondent has shown that in 1999 the Diebold Foundation became aware of circumstances that should have led to further inquiry *90 into the circumstances of the transaction, but no inquiry was made. Because the Double-D Ranch representatives concede that they did not inquire into what Shap II planned on doing, we must determine only whether an inquiry was required.
Respondent asserts that the Double-D Ranch representatives: (1) "[H]ad to have been aware that any tax advantage that Shap II intended to obtain could not have been legitimate"; (2) "knew or should have known that they were engaging the services of a company that marketed transactions that were solely tax motivated and designed to artificially avoid taxes"; and (3) "considering the sophistication and educational level of the representatives, their discussions with Fortrend, Sentinel, and River Run, and the large amount of money at stake, it is not plausible that the representatives were in the dark about the substance of the transaction."
It is clear from the record that the Double-D Ranch representatives knew: (1) Shap II would likely need to sell most of the Double-D Ranch assets in order to repay their 30-day loan from Rabobank; and (2) Shap II was planning on using "tax attributes" to offset the built-in gains of the Double-D Ranch assets.
Respondent *91 also asserts that while Mrs. Diebold may have desired to diversify her portfolio or transfer some assets as gifts, the same objectives could have been accomplished by liquidating Double-D Ranch. However, in the absence of knowledge of a nefarious scheme, when faced with the choice of liquidating the assets of Double-D Ranch or selling its stock, the Double-D Ranch shareholders were not required to choose the result that produced the highest tax liability. They chose to maximize the cash proceeds by selling the stock of Double-D Ranch rather than liquidating it.
While there is uncertainty as to what the Double-D Ranch representatives were aware of in 1999 concerning the legitimacy of Shap II's actions, we find that their level of awareness about Shap II's plans to engage in some sort of tax strategy did not require, in 1999, the Double-D Ranch representatives to make further inquiry into the circumstances of the transaction.
Notice 2001-16, 1 C.B. 730">2001-1 C.B. 730 , regarding intermediary transactions had not been released when the stock sale transaction took place.*92 was complete. There are legitimate transactions that Shap II could have contemplated to offset or defer Double-D Ranch's built-in gains, and respondent has failed to show why the Double-D Ranch representatives should have known that Shap II planned on using a fraudulent tax strategy in order to do so.Moreover, the facts of these cases are much less egregious than the facts found in
HBE Leasing Sunbeam in that Shap II's tax strategy can be analogized to a "speculative venture". While the Double-D Ranch representatives knew Shap II planned on engaging in some form of tax strategy, the fact that the strategy failed should not retroactively impute knowledge to the Double-D Ranch representatives that Shap II's plans were specious. Therefore, respondent's assertions that the Double-D Ranch representatives should have known that the transaction was not legitimate are insufficient to support a finding that the Double-D Ranch representatives had constructive knowledge of Shap II's entire scheme.Furthermore, the facts in these cases closely resemble the facts in
Frank Sawyer Trust andStarnes —both cases where we decided not to collapse various transactions under uniform fraudulent conveyance statutes. InStarnes , the taxpayers each owned 25% of the stock of Tarcon, a freight consolidation corporation. The taxpayers had sold virtually all of the *94 assets of Tarcon to an unrelated third party, so that Tarcon had only cash and contingent Federal and State corporate income tax liabilities. Another unrelated third party (Midcoast) and the Tarcon shareholders entered into a contract to sell the Tarcon stock, where Midcoast was obligated to file corporate tax returns and report the capital gains arising from Tarcon's asset sales. After Midcoast failed to pay Tarcon's income tax liabilities, the Commissioner asserted a transferee liability action against the Tarcon shareholders.In
Frank Sawyer Trust , the taxpayer owned 100% of the stock in taxi corporations and real estate corporations. LikeStarnes , the taxpayer had sold all the assets of the corporations to an unrelated third party, so that the corporations had only cash and contingent Federal and State corporate income tax liabilities. Another unrelated third party (Fortrend) and the taxpayer entered into a contract to sell the corporations' stock, where Fortrend was obligated to file corporate tax returns and report the capital gains arising from the corporations' asset sales. After Fortrend failed to pay the corporations' income tax liabilities, the Commissioner asserted a transferee *95 liability action against the taxpayer.In both
Starnes andFrank Sawyer Trust , the corporations' assets were not used to purchase the stock from the taxpayer, but an independent third party (Rabobank) financed the transaction. Moreover, in both cases the corporations were solvent at the time their stock was sold.Notice 2001-16 ,supra , had been released prior to the transaction inStarnes , but was released after the transactions inFrank Sawyer Trust .We applied State fraudulent conveyance law in both cases to determine whether the taxpayers should be liable for the income tax liabilities of the corporations. Specifically, we focused on whether all of the parties involved had knowledge of the multiple transactions, including the fraudulent scheme to offset the tax liabilities. We held that because the Commissioner failed to show the taxpayers' knowledge of the fraudulent scheme, the transactions should not be collapsed. We then applied the relevant fraudulent conveyance statute without collapsing the transactions and found that because there was no fraudulent conveyance to the taxpayers, they were not liable as transferees.
We find the facts in these cases to be very similar to those *96 in
Starnes Frank Sawyer Trust Notice 2001-16 ,supra , had not been released at the time this transaction was consummated. As inStarnes andFrank Sawyer Trust , respondent has not carried the burden of proving we should collapse the transactions. Accordingly, we will respect the form of the transactions in applying NYUFCA.An opinion in another transferee case with similar facts has recently been filed—
Feldman v. Commissioner , T.C. Memo 2011-297">T.C. Memo 2011-297Feldman found that it was "absolutely clear" that the taxpayer was aware the stock purchaser had no intention of ever paying the *97 tax liabilities and the "loan" used to purchase the stock was a sham because it was made by a shareholder of the purchaser and was not evidenced by a writing. Moreover, theFeldman transaction took place after the issuance ofNotice 2001-16 ,supra . In our cases, the transaction took place before the issuance ofNotice 2001-16 ,supra , the funds used to purchase the stock were lent by an independent third party, and the level of knowledge possessed by Double-D Ranch concerning Shap II's plans did not require further inquiry into the circumstances of the transaction.N.Y. Debt. & Cred. Law sec. 273 requires respondent to show: (1) a conveyance; (2) made without fair consideration; (3) by a person who was or will be rendered insolvent by the conveyance.See United States v. McCombs , 30 F.3d at 323section 6901 .III. Transferee Liability of Petitioners Finally, we must determine whether petitioners are liable as subsequent transferees of Double-D Ranch for the unpaid deficiency in corporate income tax, penalty, and interest due from Double-D Ranch for the short taxable year ended July 2, 1999. As previously mentioned, transferee liability may be asserted against a transferee of a transferee.
Berliant v. Commissioner , 729 F.2d 496">729 F.2d 496Sec. 6901(a) ,(c)(2) ;Commissioner v. Stern , 357 U.S. at 42Stansbury v. Commissioner , 104 T.C. 486">104 T.C. 486Under
N.Y. Debt. & Cred. Law sec. 273 respondent must prove: (1) a conveyance; (2) made without fair consideration; (3) by a person who was or will be rendered insolvent by the conveyance.United States v. McCombs , 310">30 F.3d at 323N.Y. Debt. & Cred. Law sec. 271 .The Diebold Foundation transferred all of its assets to petitioners pursuant to its plan of dissolution approved by the Supreme Court of the State of New York, leaving the Diebold Foundation with no assets in the event that it was held liable as a transferee. However, because we hold that the Diebold Foundation is not liable as a transferee of the assets of Double-D Ranch, petitioners cannot be liable as transferees of a transferee. Therefore, we hold that petitioners are not liable under
section 6901 as transferees of a transferee.IV. Conclusion We conclude that respondent has not established that a fraudulent conveyance occurred under New York law. In reaching our holding herein, we *100 have considered all arguments of the parties, and, to the extent not mentioned above, we conclude they are moot, irrelevant, or without merit.
To reflect the foregoing,
Decisions will be entered for petitioners .Footnotes
1. Cases of the following petitioners are consolidated herewith: Diebold Foundation, Inc., Transferee, docket No. 24742-08; and Ceres Foundation, Inc., Transferee, docket No. 24743-08.↩
2. All amounts are rounded to the nearest dollar.↩
3. Unless otherwise indicated, all section references are to the Internal Revenue Code, and all Rule references are to the Tax Court Rules of Practice and Procedure.↩
4. The parties also dispute whether the period of limitations expired before the mailing of the notices of liability to petitioners and thus barred respondent from determining transferee liability. As explained
infra↩ , because we ultimately decide that petitioners are not liable as subsequent transferees, it is not necessary that we decide whether the period of limitations expired.5. The real estate consisted of over 500 acres of property in Connecticut.
6. Shap II (discussed
infra↩ ) was an entity created for the purchase of the Double-D Ranch stock.7. The letter of intent indicated that the purchaser was "XYZ Corporation, a special purpose entity" until the actual purchaser was identified or organized. On June 21, 1999, Shap II was incorporated in the State of Delaware to purchase the Double-D Ranch stock.↩
8. For example, if fair market value is $300 and the tax basis is $100, the agreed-upon discount would be $8.50 [4.25% x ($300 - $100)].↩
9. The Shap II-Morgan Stanley agreement initially defined the closing date as July 1, 1999, but it was later changed to July 6, 1999.↩
10. Double-D Ranch's securities were in the custody of Bessemer Trust as of July 2, 1999. Morgan Stanley did not receive custody of any marketable securities in that account before July 6, 1999.↩
11. Rabobank deposited $297,975,000 into Shap II's Rabobank account; then $297 million was transferred to the escrow account at Bessemer Trust and $975,000 was transferred back to Rabobank for its fee for assisting in the transaction.↩
12. Toplands Farm was formed by one of the Diebold children in order to purchase and operate a farm on the real estate.↩
13. The $1,000 option, the $317,000 downpayment, and the $6,022,000 final payment total $6,340,000—the fair market value per the appraisal.↩
14. The artificial losses arose from some form of Son-of-BOSS transaction.
See Notice 2000-44, 2 C.B. 255">2000-2 C.B. 255 (describing so-called Son-of-BOSS transactions);see also Kligfeld Holdings v. Commissioner , 128 T.C. 192">128 T.C. 19215. Respondent's contention that the six-year period of limitations should apply is also predicated on the assumption that the stock sale should be recast as an asset sale followed by a liquidating distribution.↩
16. The plan was approved by the Supreme Court of the State of New York.↩
17. The parties agree that the same evidence that was used in
Diebold v. Commissioner , T.C. Memo 2010-238">T.C. Memo 2010-238Rule 122↩ , these cases do not require a trial for the submission of evidence.18. In
Mills v. Everest Reinsurance Co. , 410 F. Supp. 2d 243">410 F. Supp. 2d 243However,
Tronox, Inc. v. Anadarko Petroleum Corp. (In re Tronox Inc.) , 429 B.R. 73">429 B.R. 73Mills transfers were much more straightforward than the case before it.Because of our factual differences and our holding as explained subsequently, it is not necessary that we address whether a New York court can collapse transactions to determine whether a fraudulent conveyance occurs within the period of limitations.↩
19.
Notice 2001-16, 1 C.B. 730">2001-1 C.B. 730↩ , was not released until January 19, 2001, and was not published until February 26, 2001. The Internal Revenue Service and the Department of the Treasury issued this notice to alert taxpayers and their representatives of certain responsibilities that might arise from participating in an "intermediary transaction". These transactions were marketed to taxpayers for the avoidance of Federal income taxes. An intermediary transaction generally involved fraudulently structuring the actions of multiple parties (i.e., an asset purchaser, a stock seller, and a stock purchaser) so that assets and stock changed ownership with no resulting Federal income taxes.
Document Info
Docket Number： Docket Nos. 24741-08, 24742-08, 24743-08.
Citation Numbers： 103 T.C.M. 1289, 2012 Tax Ct. Memo LEXIS 58, 2012 T.C. Memo. 61
Judges： GOEKE
Filed Date： 3/6/2012
Precedential Status： Non-Precedential
Modified Date： 4/17/2021