Coggin Automotive Corporation v. Commissioner , 115 T.C. No. 28 ( 2000 )

115 T.C. No. 28
UNITED STATES TAX COURT
COGGIN AUTOMOTIVE CORPORATION, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 1684-99. Filed October 18, 2000.
P was a holding company that held over 80 percent of
the stock of five corporations (collectively, the
subsidiaries) that were engaged in the retail sales of
automobiles and light trucks conducted through six
dealerships. From 1972 or 1973 until and including the
fiscal year ended June 26, 1993, P (as common parent)
filed consolidated corporate income tax returns with its
subsidiaries. The subsidiaries maintained their
inventories of automobiles and light trucks under the
dollar-value LIFO method of accounting. P did not
directly own any inventory.
From Jan. 29, 1970 (the date of incorporation),
until June 27, 1993, P was a C corporation. On or about
Aug. 27, 1993, P elected S corporation status, effective
June 27, 1993. The election was made pursuant to a
restructuring plan. The restructuring resulted in the
establishment of six new S corporations formed for the
purpose of becoming general partners in six limited
partnerships that would operate the six dealerships.
Each subsidiary contributed the assets and liabilities of
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its dealership to a limited partnership in exchange for
a limited partnership interest. Following the transfer
of assets to the limited partnerships, the subsidiaries
were liquidated. As a result, P obtained the
subsidiaries’ limited partnership interests.
R determined that pursuant to sec. 1363(d), I.R.C.,
P’s conversion to an S corporation triggered the
inclusion of the affiliated group’s pre-S-election LIFO
reserves ($5,077,808) into P’s income. R’s primary
position was that the restructuring should be disregarded
because it had no tax-independent purpose. R
alternatively maintained that under the aggregate
approach to partnerships, a pro rata share ($4,792,372)
of the pre-S-election LIFO reserves was attributable to
P.
Held: The restructuring was a genuine multiple-
party transaction with economic substance, compelled by
business realities and imbued with tax-independent
considerations. The restructuring was not shaped solely
by tax avoidance features. Consequently, R’s primary
position that there was no tax-independent business
purpose for the restructuring is rejected.
Held, further: The aggregate approach (as opposed
to the entity approach) to partnerships better serves the
underlying purpose and scope of sec. 1363(d), I.R.C.
Accordingly, P is deemed to own a pro rata share of the
partnerships’ inventories of automobiles and light
trucks. Consequently, upon its election of S corporation
status, P was required to include $4,792,372 in its gross
income as its ratable share of the LIFO recapture amount.
Sheldon M. Kay and Robert L. LoRay, for petitioner.
James P. Dawson and Julius Gonzalez, for respondent.
JACOBS, Judge: Respondent determined deficiencies in
petitioner’s Federal income taxes as follows:
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Tax Year Ended Deficiency
June 26, 1993 $432,619
Dec. 31, 1993 432,619
Dec. 31, 1994 432,619
Dec. 31, 1995 432,619
These deficiencies stem from respondent’s determination requiring
petitioner to recapture its LIFO reserves upon conversion from a C
corporation to an S corporation effective June 27, 1993.
The issue for decision is whether petitioner is subject to
LIFO recapture pursuant to section 1363(d) as a consequence of a
change in the structure of petitioner and its subsidiaries. For
the reasons set forth below, we hold that it is.
All section references are to the Internal Revenue Code as in
effect for 1993. All dollar amounts are rounded.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found. The
stipulation of facts and the attached exhibits are incorporated
herein by this reference.
Background
At the time the petition in this case was filed, Coggin
Automotive Corp., formerly known as Coggin-O’Steen Investment
Corp., was a Florida corporation with its principal place of
business in Jacksonville, Florida. (Herein, both Coggin Automotive
Corp. and Coggin-O’Steen Investment Corp. are referred to as
petitioner.)
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Petitioner was a holding company. Before June 21, 1993,
petitioner held over 80 percent of the stock of five C
corporations, namely, Coggin Pontiac, Inc., Coggin Nissan, Inc.,
Coggin-O’Steen Imports, Inc., Coggin-O’Steen Motors, Inc., and
Coggin Imports, Inc. (collectively, the subsidiaries), all of which
were engaged in the retail sales of automobiles and light trucks.
Each subsidiary was incorporated in Florida.
Six automobile dealerships were operated through the
subsidiaries (five through direct ownership and one through
ownership of a 50-percent general partnership interest). Four of
the dealerships (Coggin Pontiac-GMC, Coggin Honda, Coggin Nissan,
and Coggin Acura) were located in Jacksonville, Florida; one
(Coggin Motor Mall) was located in Fort Pierce, Florida; and one
(Coggin-Andrews Honda) was located in Orlando, Florida.
From 1972 or 1973 until and including the fiscal year ended
June 26, 1993, petitioner (as the common parent) filed consolidated
Forms 1120, U.S. Corporation Income Tax Return, with its
subsidiaries (hereinafter, the affiliated group).1 The
subsidiaries maintained their inventories of automobiles and light
trucks under the dollar-value LIFO method of accounting.
1
Petitioner and its subsidiaries reported their
consolidated income on a 52- to 53-week basis; the fiscal year of
the affiliated group ended in June.
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Petitioner did not directly own any inventory. As of June 26,
1993, the accumulated LIFO reserves of the affiliated group were
$5,077,808 (pre-S-election LIFO reserves).
From January 29, 1970 (the date of incorporation), until June
27, 1993, petitioner was a C corporation. As of June 27, 1993, the
equity and voting interests in petitioner were held as follows:
Shareholder Ownership Interest Voting Interest
Luther Coggin 55.0% 78%
Harold O’Steen 22.5 11
Howard O’Steen 22.5 11
Luther Coggin was petitioner’s president and chief executive
officer; Harold and Howard O’Steen (collectively, the O’Steens)
were vice presidents of petitioner. Mr. Coggin and the O’Steens
were also the three directors of petitioner. The O’Steens did not
assume an active managerial role in petitioner’s operations.
On January 2, 1996, the O’Steens sold their stock interests in
petitioner for $30,025,000 pursuant to a redemption and purchase
agreement.
Coggin Pontiac-GMC
Coggin Pontiac-GMC began its operations in 1968; initially,
its operations were conducted through Coggin Pontiac, Inc. Before
June 21, 1993, Coggin Pontiac, Inc., owned the assets of its
dealership, including the franchise rights.
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Coggin Honda
Coggin Honda began its operations in 1982; initially, its
operations were conducted through Coggin Pontiac, Inc. Before June
21, 1993, Coggin Pontiac, Inc., owned the assets of its dealership,
including the franchise rights.
Coggin Nissan
Petitioner acquired Coggin Nissan in 1976; initially, its
operations were conducted through Coggin Nissan, Inc. From its
inception until July 8, 1987, Coggin Nissan, Inc., owned the assets
of its dealership, including the franchise rights.
On or about July 9, 1987, Michael Andrews, the then-acting
general manager of the dealership, acquired a 5-percent stock
interest in Coggin Nissan, Inc., for $99,442. Between 1990 and
1997, Todd Seth was the general manager of Coggin Nissan. On or
about April 1, 1992, Mr. Seth acquired a 5-percent stock interest
in Coggin Nissan, Inc., for $118,581. The prices paid by Messrs.
Andrews and Seth for their respective interests were determined by
reference to the corporation’s book value (with little or no value
being assigned to the franchise rights), as reflected on the
General Motors Operating Report (GMOR).2
2
The General Motors Operating Report is a report
customarily used by General Motors and other automotive dealers
that provides a uniform method of determining certain financial
information for a dealership, including book value for the
dealership.
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Coggin Acura
Coggin Acura began its operations in 1986; initially, its
operations were conducted through Coggin Imports, Inc. At all
relevant times, Jack Hanania was the general manager of the
dealership. From its inception until April 30, 1991, Coggin
Imports, Inc. (a subsidiary of petitioner), owned the assets of the
dealership, including the franchise rights.
On or about May 1, 1991, Mr. Hanania acquired a 20-percent
interest in Coggin Imports, Inc., for $35,000. The price paid by
Mr. Hanania for his interest was determined by reference to the
corporation’s book value (with little or no value being assigned to
the franchise rights), as reflected on the GMOR.
Coggin Motor Mall
Petitioner acquired Coggin Motor Mall in 1982; initially its
operations were conducted through Coggin-O’Steen Motors, Inc.
Since 1990, the general manager of the dealership has been Robert
Caracello. Mr. Andrews was the director of operations for the
dealership from 1993 through 1997. Since 1982, Coggin-O’Steen
Motors, Inc., has owned the assets of the dealership, including the
franchise rights.
On or about April 1, 1988, Mr. Caracello acquired 750 shares
of stock in Coggin-O’Steen Motors, Inc.; he subsequently sold 250
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of these shares to petitioner for $132,915. Immediately after this
sale, Mr. Caracello held a 5-percent interest in Coggin-O’Steen
Motors, Inc.
Coggin-Andrews Honda
Coggin-Andrews Honda (f.k.a. Coggin-O’Steen Honda) began its
operations around December 1984. From 1985 until 1990, Coggin-
O’Steen Imports, Inc. (Imports), owned Coggin-Andrews Honda.
Petitioner owned an 80-percent interest in Imports; the remaining
20 percent was owned by Mr. Andrews.
In 1989, petitioner agreed to sell the Honda dealership to a
group of investors. Because of a lack of financing, the deal
collapsed.
Mr. Andrews wanted to be the sole owner of the Honda
dealership. He was upset upon learning that petitioner had agreed
to sell the dealership without his consent. Thereafter, he
intensified his efforts to increase his percentage of ownership in
Imports and eventually be the sole owner of the Honda dealership.
In 1990, Mr. Andrews began negotiations with Mr. Coggin
regarding the acquisition of all the stock of Imports. Ultimately,
it was agreed that Mr. Coggin would immediately sell Mr. Andrews an
additional 30-percent interest in Imports and give him the option
to purchase the entire Honda dealership (including the franchise
rights) after 10 years.
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In order to facilitate Mr. Andrews’ eventual sole ownership of
the dealership, as well as to provide Mr. Andrews immediately with
some degree of control over the dealership’s assets, Mr. Andrews’
attorney, Charles Egerton recommended that the dealership’s assets
be held by a limited partnership. Mr. Egerton advised Mr. Andrews
that operating the dealership through a limited partnership would
afford Mr. Andrews the following advantages: (1) Limited liability
protection; (2) the ability to make disproportionate distributions;
(3) a single level of taxation; (4) a lower Federal tax rate; (5)
the ability to avoid Florida’s State income tax on his distributive
share of profits; and (6) the ability to exercise greater control
over the potential sale or liquidation of partnership assets. Mr.
Coggin agreed to have the dealership’s assets held by a limited
partnership.
Coggin-Andrews Partnership
On December 14, 1990, Imports entered into an agreement with
Andrews Automotive Corp. (Andrews Automotive), an S corporation
solely owned by Mr. Andrews, to form the Coggin-Andrews
partnership. The partnership was created through a series of
related transactions. First, Mr. Andrews redeemed all of his stock
in Imports, receiving in exchange a promissory note in the amount
of $573,207 (the note). (Immediately prior thereto, and in
contemplation of the redemption, Imports made a $1,750,000
distribution to petitioner.) Then, Mr. Andrews contributed both
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the note and $107,000 in cash to Andrews Automotive. Finally,
Andrews Automotive contributed the note and the $107,000, while
Imports contributed the assets of Coggin Andrews Honda (valued at
approximately $680,000), to the partnership, each receiving in
exchange a 50-percent interest in the partnership.
Under the terms of the Coggin-Andrews partnership agreement
(the partnership agreement), Imports was designated the
partnership’s managing partner.
The 1993 Restructuring Transactions
Petitioner’s board of directors determined that because (1)
the general managers wanted to own a direct interest in, and
participate in, the profits of a stand-alone partnership
dealership, and (2) Mr. Coggin wanted (as part of a succession plan
and to provide liquidity to cover estate taxes) an effective way in
which the general managers could buy him out, it would be
advantageous to change the structure of petitioner from a C
corporation to an S corporation and to operate the dealerships
through partnerships similar to the Coggin-Andrews partnership.
Consequently, during the latter part of May 1993, the board adopted
a plan to change petitioner’s structure and that of the
subsidiaries pursuant to a series of transactions (the 1993
restructuring), as outlined in a “talking points paper” prepared by
KPMG Peat Marwick (KPMG).
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Permission from the automobile manufacturers associated with
the particular dealerships had to be obtained before there could be
a change in the ownership structure of the dealerships.
Consequently, on or around May 27, 1993, petitioner sent letters to
each of the automobile manufacturers notifying them of the proposed
changes and requested their approval. Each letter stated, in part:
After serious consideration of the present and
future tax laws, the shareholders * * * are in the
process of forming a Florida limited partnership * * *
* * * * * * *
It is our objective to complete the transfer of
* * * [the dealership] operation to * * * [the newly
formed partnership] on or before June 21, 1993.
Completion of the transfer by that date is critical to us
for tax reasons.
Each automobile manufacturer approved the ownership change.
The first step of the 1993 restructuring was the establishment
of six new corporations. On May 27, 1993, articles of
incorporation were filed for CP-GMC Motor Corp., CH Motor Corp., CN
Motor Corp., CA Motor Corp., CO Motor Corp., and CFP Motor Corp.
(collectively, the newly formed S corporations), and each
corporation elected S corporation status, effective May 27, 1993.
The corporations were incorporated for the purpose of being general
partners in limited partnerships that would operate the
dealerships. Mr. Coggin and the O’Steens were the sole
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shareholders of the newly formed S corporations during all relevant
periods, each holding the same proportion of ownership interests in
the newly formed S corporations as they held in petitioner.
The second step of the 1993 restructuring was to create
Florida limited partnerships. Contemporaneously with the
establishment of the S corporations, petitioner’s subsidiaries, the
S corporations, and several of the dealerships’ general managers
entered into limited partnership arrangements (collectively, the
limited partnerships), as follows:
Name of Partnership General Partner Limited Partner
CP-GMC Motors, Ltd. CP-GMC Motor Corp. Coggin Pontiac, Inc.
CH Motors, Ltd. CH Motor Corp. Coggin Pontiac, Inc.
CN Motors, Ltd. CN Motor Corp. Coggin Nissan, Inc.
CA Motors, Ltd. CA Motor Corp. Coggin Imports, Inc.
CFP Motors, Ltd. CFP Motor Corp. Coggin-O’Steen Motors, Inc.
CO Motors, Ltd. CO Motor Corp. Coggin-O’Steen Motors, Inc.
Each general partner held a 1-percent interest in the limited
partnership; each limited partner held a 99-percent interest.
The third step of the 1993 restructuring involved the
redemption of Messrs. Andrews’, Seth’s, Hanania’s, and Caracello’s
stock interests. On or about May 31, 1993, Coggin Nissan, Inc.,
redeemed Messrs. Andrews’ and Seth’s stock interests for $143,575
each. This amount was paid in the form of promissory notes made by
Coggin Nissan, Inc. Petitioner paid a portion of the taxes
attributable to the gain generated by the redemption. On the same
day, Coggin Imports, Inc., redeemed Mr. Hanania’s stock interest
for $53,849, and Coggin-O’Steen Motors, Inc., redeemed Mr.
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Caracello’s stock interest for $222,133. Payment for these stock
interests was in the form of a promissory note of the respective
redeeming corporation. All redemptions were based on the book
values of the dealerships as reflected on the GMOR.
Next, on June 21, 1993, each of the newly formed S
corporations contributed $9,000 in cash to the limited partnership
in which it was to hold an interest. Simultaneously, (1) Coggin
Pontiac, Inc., contributed the assets and liabilities of its
Pontiac dealership (valued at $5,737,129) to CP-GMC Motors, Ltd.,
(2) Coggin Pontiac, Inc., contributed the assets and liabilities of
its Honda dealership (valued at $3,613,421) to CH Motors, Ltd., (3)
Coggin Nissan, Inc., contributed the assets and liabilities of its
Nissan dealership (valued at $1,600,467) to CN Motors, Ltd., (4)
Coggin Imports, Inc., contributed the assets and liabilities of its
Acura dealership (valued at $85,989) to CA Motors, Ltd., (5)
Coggin-O’Steen Motors, Inc., contributed the assets and liabilities
of its Mercedes Benz/BMW dealership (valued at $3,753,962) to CFP
Motors, Ltd., and (6) Coggin-O’Steen Imports, Inc., contributed its
general partnership interest in the Coggin-Andrews partnership
(valued at $669,504) to CO Motors, Ltd.
Concurrently, (1) Messrs. Andrews and Seth each contributed
the $143,575 Coggin Nissan, Inc. note to CN Motors, Ltd., in
exchange for a 5-percent (total 10 percent) limited partnership
interest, (2) Mr. Hanania contributed the $53,849 Coggin Imports,
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Inc. note to CA Motors, Ltd., in exchange for a 20-percent limited
partnership interest, and (3) Mr. Caracello contributed the
$222,133 Coggin-O’Steen Motors, Inc. note to CFP Motors, Ltd., in
exchange for a 5-percent limited partnership interest. By
September 30, 1993, the aforementioned notes were canceled.
Each partnership agreement provided that the general partner,
i.e., one of the newly formed S corporations, would have control
over the operations of the partnership. Further, each partnership
agreement provided that the general manager/limited partner had to
tender his partnership interest to the partnership in the event he
left.
Immediately following the transfers of assets to the
partnerships, the subsidiaries were liquidated. As a result,
petitioner obtained the subsidiaries’ limited partnership
interests.
On or about August 27, 1993, petitioner elected S corporation
status, effective June 27, 1993. At the time of the election, no
changes were made to petitioner’s capital structure or to the
ownership interests in its stock.
Subsequent Transactions
On November 1, 1993, Mr. Hanania acquired an additional 20-
percent limited partnership interest in CA Motors, Ltd., for
$179,707. Subsequently, he purchased another 10-percent limited
partnership interest for $101,103. Ultimately, on July 1, 1996,
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petitioner and Mr. Hanania entered into an agreement whereby Mr.
Hanania was given the right to acquire the Acura dealership over 7
years. As part of the agreement, Mr. Hanania had the option to
obtain the franchise rights of the dealership for an additional
$700,000.
In 1998, petitioner sold its 50-percent interest in the
partnership to Mr. Hanania for $2,397,500. Mr. Hanania borrowed
the entire purchase price from petitioner, securing his loan with
his shares of stock in his solely owned corporation.
On October 1, 1994, Mr. Seth purchased Mr. Andrews’ 5-percent
limited partnership interest in CN Motors, Ltd., for $201,138.
On January 1, 1996, CN Motor Corp., CO Motor Corp., CH Motor
Corp., CA Motor Corp., and CFP Motor Corp. merged into CP-GMC Motor
Corp. Simultaneously therewith, CP-GMC Motor Corp. changed its
name to CF Motor Corp. As of that date, Mr. Coggin was the
majority shareholder (75 percent) of CF Motor Corp. Most of the
other 16 shareholders were key employees of petitioner; none of
these employees had an ownership interest greater than 4.5 percent.
In 1997, petitioner agreed to sell the stock of CF Motor
Corp., as well as the assets of the dealerships, to Asbury
Automotive of Jacksonville, L.P. (Asbury). As part of the
acquisition, petitioner agreed to sell to Asbury its 50-percent
interest in the Coggin-Andrews partnership. Mr. Andrews objected
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to selling the dealership and filed a lawsuit seeking to block the
proposed sale. Settlement negotiations followed, and ultimately,
Mr. Andrews agreed to sell his 50-percent interest in the Coggin-
Andrews partnership to petitioner and Asbury for approximately $7.3
million.
Notices of Deficiency
In two notices of deficiency3 (one regarding tax year ended
June 26, 1993, and the other regarding tax years ended December 31,
1993, 1994, and 1995), respondent determined that pursuant to
section 1363(d), petitioner’s conversion to an S corporation
triggered the inclusion of the affiliated group’s pre-S election
LIFO reserves ($5,077,808) into petitioner’s gross income.
Respondent’s primary position was that the 1993 restructuring
should be disregarded because it had no tax-independent purpose.
Alternatively, respondent maintained that under the aggregate
approach of partnerships a pro rata share ($4,792,372) of the pre-S
election LIFO reserves was attributable to petitioner. Respondent
3
Before the issuance of the notices of deficiency,
respondent’s National Office issued a technical advice
memorandum, Tech. Adv. Mem. 97-16-003 (Sept. 30, 1996), which
concluded that petitioner would be subject to LIFO recapture
pursuant to sec. 1363(d) as a consequence of a change in its and
its subsidiaries’ structure.
Technical advice memorandums are not binding on us. We
mention the issuance of the technical advice memorandum solely
for the sake of completeness.
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concluded that under either theory, there was an increase in
petitioner’s tax liability, payable in four equal annual
installments.4
OPINION
Use of LIFO, vis-a-vis FIFO, often allows a taxpayer the
benefit of income deferral, particularly in periods of rising
inventory costs and stable or growing inventory stock. The amount
of cumulative income deferral obtained through the use of the LIFO
method of accounting is represented in a taxpayer’s LIFO reserve.
Section 1363(d) mandates recapture of the LIFO reserve upon
the conversion of a C corporation to an S corporation. In relevant
part, section 1363(d) provides:
SEC. 1363(d). Recapture of LIFO Benefits.--
(1) In general.–-If–-
(A) an S corporation was a C corporation
for the last taxable year before the first
taxable year for which the election under
section 1362(a) was effective, and
(B) the corporation inventoried goods
under the LIFO method for such last taxable
year,
the LIFO recapture amount shall be included in the gross
income of the corporation for such last taxable year (and
appropriate adjustments to the basis of the inventory
shall be made to take into account the amount included in
gross income under this paragraph).
4
Pursuant to respondent’s alternative position, the tax
deficiency for the 4 taxable years under consideration is
$408,300.
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* * * * * * *
(3) LIFO recapture amount.–-For purposes of this
subsection, the term “LIFO recapture amount” means the
amount (if any) by which–-
(A) the inventory amount of the
inventory asset under the first-in, first-out
method authorized by section 471, exceeds
(B) the inventory amount of such assets
under the LIFO method.
Any increase in tax resulting from the application of section
1363(d) is required to be paid in four equal installments beginning
in the last taxable year for which the corporation was a C
corporation. See sec. 1363(d)(2).
In enacting section 1363(d), Congress was concerned that a
corporation maintaining its inventory under LIFO might circumvent
the built-in gain rules of section 1374 to the extent the
corporation did not liquidate its LIFO layers during the 10 years
following its conversion from a C corporation to an S corporation.5
5
H. Rept. 100-391 (Vol. II), at 1098 (1987), in relevant
part, states:
The committee is concerned that taxpayers
using the LIFO method may avoid the built-in
gain rules of section 1374. It believes that
LIFO method taxpayers, which have enjoyed the
deferral benefits of the LIFO method during
their status as a C corporation, should not
be treated more favorably than their FIFO
(first-in, first-out) counterparts. To
eliminate this potential disparity in
treatment, the committee believes it is
appropriate to require a LIFO taxpayer to
recapture the benefits of using the LIFO
method in the year of conversion to S status.
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Respondent, relying on Frank Lyon Co. v. United States, 435
U.S. 561, 583-584 (1978), takes the position that the 1993
restructuring “was not imbued with tax-independent considerations,
but was instead shaped solely by tax-avoidance features that have
meaningless labels attached.” In this regard, respondent posits:
“The 1993 restructuring was conceived and executed for the
principal purpose of permanently escaping corporate level taxes on
the LIFO reserves built into the LIFO inventories of petitioner’s
former consolidated subsidiaries.”
Petitioner disputes respondent’s assertion, maintaining that
the 1993 restructuring occurred in order to achieve tax-independent
economic and/or business desires of both Mr. Coggin and the general
managers. We agree with petitioner. The record reveals: (1)
General managers were vital to the successful operation of the
automobile dealerships; (2) providing incentives to attract and
retain quality general managers was essential in the success of the
automobile dealerships; (3) operating the automobile dealerships in
stand-alone partnership form afforded the general managers
flexibility greater than that offered by operating the dealerships
in corporate form; and (4) Mr. Coggin and the general managers
never discussed recapture of the LIFO reserves.
It is axiomatic that (1) tax considerations may play a
legitimate role in shaping a business transaction, and (2) tax
planning does not necessarily transform an event otherwise
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nontaxable into one that is taxable. Here, Mr. Coggin sought the
advice of tax professionals–-both accountants and tax attorneys.
The legal opinion rendered by the law firm that Mr. Coggin engaged
did not address LIFO recapture. The talking points paper prepared
by KPMG set forth the potential risk of LIFO recapture, as well as
a calculation of the potential tax liability, if section 1363(d)
applied. Specifically, the document stated:
LIFO inventory should not be recaptured on conversion of
COIC [Coggin-O’Steen Investment Corp.] from a C
corporation to an S corporation since COIC does not
inventory any goods under the LIFO method for its last
tax year as a C corporation (I.R.C. section 1363(d))
(some degree of IRS risk which is being reviewed by our
Washington National Tax practice).
But notably, the paper did not address the tax benefits of avoiding
the LIFO recapture.
To conclude this aspect of our opinion, we find that the 1993
restructuring was: (1) A genuine multiple-party transaction with
economic substance; (2) compelled by business realties, imbued with
tax-independent considerations; and (3) not shaped solely by tax
avoidance features. Cf. Frank Lyon Co. v. United States, supra.
Consequently, we reject respondent’s primary position that there
was no tax-independent business purpose for the 1993 restructuring.
We now turn our attention to respondent’s alternative position.
For tax purposes, a partnership may be viewed either (1) as an
aggregation of its partners, each of whom directly owns an interest
in the partnership’s assets and operations, or (2) as a separate
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entity, in which separate interests are owned by each of the
partners. Subchapter K of the Internal Revenue Code (Partners and
Partnerships) blends both approaches. In certain areas, the
aggregate approach predominates. See sec. 701 (Partners, Not
Partnership, Subject to Tax), sec. 702 (Income and Credits of
Partner). In other areas, the entity approach predominates. See
sec. 742 (Basis of Transferee Partner’s Interest), sec. 743
(Optional Adjustment to Basis of Partnership Property). Outside of
subchapter K, whether the aggregate or the entity approach is to be
applied depends upon which approach more appropriately serves the
Code provision at issue. See Holiday Village Shopping Ctr. v.
United States, 773 F.2d 276, 279 (Fed. Cir. 1985); Casel v.
Commissioner, 79 T.C. 424, 433 (1982); Conf. Rept. 2543, 83d Cong.,
2d Sess. 59 (1954).
Respondent argues that the legislative intent underlying the
enactment of section 1363(d) requires the application of the
aggregate theory. Respondent asserts that Congress enacted section
1363(d) in order to ensure that the corporate level of taxation be
preserved on built-in gain assets (such as LIFO reserves) that fall
outside the ambit of section 1374. In this regard, respondent
contends that failure to apply the aggregate theory to section
1363(d) would allow the gain deferred under the LIFO method to
completely escape the corporate level of taxation upon a C
corporation’s election of S corporation status and would eviscerate
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Congress’ supersession of General Utils. & Operating Co. v.
Helvering, 296 U.S. 200 (1935).
Petitioner maintains that although there are no cases that
apply the aggregate or entity approach to inventory items, the
focus with respect to accounting for inventory is done at the
partnership level. In essence, petitioner asserts that the LIFO
recapture amount under section 1363(d) is a component of a
partnership’s taxable income that must be computed at the
partnership level. Petitioner posits that it would be incongruent
to treat the calculation of the LIFO recapture amount as an item of
income under the entity approach while applying the aggregate
approach to attribute the ownership of inventory to the partners.
Moreover, petitioner argues that section 1363(d)(4)(D) operates to
prevent the inventory of one member of an affiliated group from
being attributed to another member.
To summarize the parties’ positions: respondent maintains
that for purposes of section 1363(d), each of the limited
partnerships (i.e., CP-GMC Motors, Ltd., CH Motors, Ltd., CN
Motors, Ltd., CA Motors, Ltd., CFP Motors, Ltd., and CO Motors,
Ltd.) should be viewed as an aggregation of its partners, and
consequently, petitioner, as a limited partner in each of the
partnerships, is deemed to own a pro rata share of each
partnership’s inventory of automobiles and light trucks.
Conversely, petitioner maintains that each of the limited
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partnerships should be viewed as a separate entity, and
consequently, none of any limited partnership’s inventory or LIFO
reserve is deemed to be owned by petitioner or the other partners.
We agree with respondent’s position for the following reasons.
In 1986, Congress enacted the Tax Reform Act of 1986 (TRA),
Pub. L. 99-514, secs. 631-633, 100 Stat. 2085, 2269-2282, which did
away with the General Utilities doctrine. (Under the General
Utilities doctrine, corporations generally had not been taxed on
the distribution of assets whose fair market values exceeded their
tax bases. See Estate of Davis v. Commissioner, 110 T.C. 530, 548
n.13 (1998).) In TRA section 632(a), section 1374 (Tax Imposed on
Certain Built-In Gains) was amended to prevent the potential
circumvention of the corporate level of tax on the distribution of
appreciated (built-in gain) assets by a former C corporation that
held such assets at the time of its conversion to an S
corporation.6 See Rondy, Inc. v. Commissioner, T.C. Memo. 1995-372
(“the original purpose of section 1374 was to support Congress’
repeal of the General Utilities doctrine”); H. Conf. Rept. 99-841
(Vol. II), at II-198 to II-199, II-203 (1986), 1986-3 C.B. (Vol.
4), 1, 198-199, 203.
It became apparent that the goal of section 1374 was not being
achieved with respect to former C corporations that used the LIFO
6
In general, sec. 1374 requires an S corporation to pay
a corporate-level tax on any net recognized built-in gains
recognized within 10 years following the effective date of the S
election.
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method of accounting because a taxpayer that experienced rising
acquisition costs would seldom, if ever, experience a decrement of
its LIFO reserves.7 Congress thus recognized that the deferred
built-in gain resulting from using the LIFO method might escape
taxation at the corporate level. In light of this potential for
abuse, section 1363(d) was enacted. See H. Rept. 100-391 (Vol.
II), at 1098 (1987).
After considering the legislative histories of sections 1374
and 1363(d), we conclude that the application of the aggregate
approach (as opposed to the entity approach) of partnerships in
this case better serves Congress’ intent. By enacting sections
1374 and 1363(d), Congress evinced an intent to prevent
corporations from avoiding a second level of taxation on built-in
gain assets by converting to S corporations. Application of the
aggregate approach to section 1363(d) is consistent with Congress’
rationale for enacting this section and operates to prevent a
corporate taxpayer from using the LIFO method of accounting to
permanently avoid gain recognition on appreciated assets. In
contrast, applying the entity approach to section 1363(d) would
potentially allow a corporate partner to permanently avoid paying
a second level of tax on appreciated property by encouraging
7
See, e.g., Staff of Joint Committee on Taxation,
Description of Possible Options to Increase Revenues 189 (J.
Comm. Print 1987) (“[section 1374] may be ineffective in the case
of a LIFO inventory, since a taxpayer experiencing constant
growth may never be required to invade LIFO inventory layers”).
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transfers of inventory between related entities.8 This result
clearly would be inconsistent with the legislative history of
sections 1363(d) and 1374 and the supersession of the General
Utilities doctrine.
Courts have, in some instances, used the aggregate approach
for purposes of applying nonsubchapter K provisions. For instance,
in Casel v. Commissioner, 79 T.C. at 433, we upheld the
Commissioner’s use of the aggregate approach for purposes of
applying section 267 (disallowance of losses between related
parties). In Holiday Village Shopping Ctr. v. United States, 773
F.2d at 279, the Court of Appeals for the Federal Circuit applied
the aggregate approach for purposes of determining the extent of
depreciation recapture to each shareholder. Similarly, the Court
of Appeals in Unger v. Commissioner, 936 F.2d 1316 (D.C. Cir.
1991), affg. T.C. Memo. 1990-15, used the aggregate approach in
determining a taxpayer’s permanent establishment. In each of these
instances, the court analyzed the relevant legislative history and
statutory scheme in determining whether the aggregate or entity
approach was more appropriate. Moreover, we are mindful that the
aggregate approach is generally applied to various subchapter K
provisions dealing with inventory and other built-in gain assets
8
Under sec. 704(c) the contributing partner is normally
allocated the “built-in” gain of the asset. However, if there is
no liquidation of LIFO layers, no gain or loss would be allocated
to a contributing partner who uses the LIFO method. This would
render sec. 704(c) effectively useless in allocating the built-in
gain deferred by the LIFO method of accounting.
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(i.e., receivables). See, e.g., secs. 704(c), 731, 734(b), 743(b),
751.
We recognize that in several instances courts have found the
entity approach better than the aggregate approach. For example,
in P.D.B. Sports, Ltd. v. Commissioner, 109 T.C. 423 (1997), this
Court used the entity approach for purposes of applying section
1056. Similarly, in Madison Gas & Elec. Co. v. Commissioner, 72
T.C. 521, 564 (1979), affd. 633 F.2d 512 (7th Cir. 1980), this
Court and the Court of Appeals for the Seventh Circuit applied the
entity approach in determining whether expenses were ordinary and
necessary under section 162. Likewise, in Brown Group, Inc. &
Subs. v. Commissioner, 77 F.3d 217 (8th Cir. 1996), revg. 104 T.C.
105 (1995), the Court of Appeals for the Eighth Circuit concluded
that the entity approach, rather than the aggregate approach,
should be used in characterizing income (subpart F income) earned
by the partnership. We do not believe the holdings in those cases
to be dispositive here. The outcomes in those cases were based
upon the specific legislative histories and statutory schemes of
the respective Code provisions at issue. Each court viewed the
respective statute in the context in which it was enacted and
concluded that the entity approach was more appropriate than the
aggregate approach to carry out Congress’ intent. Here, as stated,
both the legislative history and the statutory scheme of section
1363(d) mandate the application of the aggregate approach.
Finally, we do not believe that section 1363(d)(4)(D) operates
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to prevent the attribution of the dealership’s LIFO reserves to
petitioner. Section 1363(d)(4)(D) provides:
(D) Not treated as member of affiliated group.–-
Except as provided in regulations, the corporation
referred to in * * * [section 1363(d)(1)] shall not be
treated as a member of an affiliated group with respect
to the amount included in gross income * * *
Simply stated, section 1363(d)(4)(D) requires that a member of an
affiliated group that elects to be an S corporation be treated as
an independent entity for purposes of determining the amount
included in gross income. Section 1363(d)(4)(D) requires only a
converting member of the affiliated group (rather than each member
of the affiliated group) to be responsible for the tax imposed on
the recapture of the corporation’s LIFO reserves. See S. Rept.
100-445, at 438 (1988). Section 1363(d)(4)(D) does not prohibit
attribution of the inventory and LIFO reserves to petitioner in
this case.
To conclude, we hold that the aggregate approach (as opposed
to the entity approach) better serves the underlying purpose and
scope of section 1363(d) in the circumstances of this case.
Consequently, petitioner is deemed to own a pro rata share
($4,792,372) of the dealerships’ inventories. Accordingly, we hold
that upon its election of S corporation status, petitioner was
required to include in its gross income its ratable share of the
LIFO recapture amount.
In reaching our conclusions, we have considered carefully all
arguments made by the parties for a result contrary to that
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expressed herein, and to the extent not discussed above, we find
them to be without merit.
The deficiencies set forth in the notices of deficiency are
based on petitioner’s failure to recapture its LIFO reserves of
$5,077,808 into its income. Based on our holding that $4,792,372,
rather than $5,077,808, of the dealerships’ pre-S election LIFO
reserves must be included in petitioner’s income, the tax
deficiency is $408,300 (rather than $432,619), pursuant to
respondent’s alternative position, for each of the years under
consideration. Accordingly,
Decision will be
entered for respondent
in the reduced amounts
for the years under
consideration.