Neal Crispin v. Commissioner of Internal Reven

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-2275
_____________
NEAL CRISPIN,
Appellant
v.
COMMISSIONER OF INTERNAL REVENUE
_______________
On Appeal from the United States Tax Court
(No. 28980-07)
Judge: Hon. Diane L. Kroupa
_______________
Argued
January 8, 2013
Before: RENDELL, FISHER, and JORDAN, Circuit
Judges.
(Filed: February 25, 2013)
_______________
George W. Connelly [ARGUED]
Chamberlain, Hrdlicka, White, Johnson & Williams
1200 Smith Street
1400 Citicorp
Houston, TX 77002
Counsel for Appellant
Gary R. Allen
Tamara W. Ashford
Richard Farber
Judith A. Hagley [ARGUED]
Gilbert S. Rothenberg
United States Department of Justice
Tax Division
950 Pennsylvania Avenue, NW
P.O. Box 502
Washington, DC 20044
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Neal D. Crispin appeals the decision of the United
States Tax Court that he was not entitled to an ordinary loss
deduction for his participation in a Custom Adjustable Rate
Debt Structure (“CARDS”) transaction and that he is liable
for an accuracy-related penalty under § 6662 of the Internal
Revenue Code (“I.R.C.”).1 The Tax Court disallowed the
1
All references to the I.R.C. correspond to sections of
Title 26 of the United States Code (2001).
2
claimed loss on the grounds that Crispin‟s CARDS
transaction lacked economic substance and held that he could
not avoid the penalty because he had not relied reasonably or
in good faith on the advice of an independent and qualified
tax professional. For the following reasons, we will affirm.
I. Background
A. Facts
Crispin is a businessman who has engaged in various
enterprises over the years, some through his wholly-owned S-
corporation, Murus Equities, Inc. (“Murus”). Among other
things, he has been involved in leasing, structured finance,
aircraft acquisition, and mortgage-backed securities investing.
He practiced as a certified public accountant and served as
chief financial officer of an energy company, before pursuing
opportunities in structured finance and aircraft leasing.
Crispin has had long and varied experience with tax matters,
including tax shelters.
Since 1989, Crispin has been in the business of
purchasing and leasing commercial turboprop aircraft through
investment syndicates. According to Crispin, his aircraft
leasing business purchases used aircraft costing between $1
million and $10 million and leases them for approximately
ten years before reselling them. Prior to his participation in
the CARDS transaction that is the subject of this appeal,
Crispin had identified three aircraft (the “Aircraft”) that he
expected would be available for purchase in 2002 and that he
says he planned to have Murus purchase.2
2
Crispin conducted his aircraft leasing business
3
A CARDS transaction is a tax-avoidance scheme that
was widely marketed to wealthy individuals during the
1990‟s and early 2000‟s. It purports to generate, through a
series of pre-arranged steps, large “paper” losses deductible
from ordinary income. First, a tax-indifferent party, such as a
foreign entity not subject to United States taxation, borrows
foreign currency from a foreign bank (a “CARDS Loan”).
Then, a United States taxpayer purchases a small amount,
such as 15 percent, of the borrowed foreign currency by
assuming liability for a an equal amount of the CARDS Loan.
The taxpayer also agrees to be jointly liable with the foreign
borrower for the remainder of the CARDS Loan and so the
taxpayer purports to establish a basis equal to the entire
borrowed amount.3 Finally, the taxpayer exchanges the
through a separate company, AeroCentury Corp., of which he
was the chairman and chief executive officer. It is unclear
from the record whether Crispin had previously used Murus
to engage in aircraft leasing.
3
The Commissioner contends that that step in the
CARDS transaction “is predicated on an invalid application
of the ... basis provisions of the Internal Revenue Code.”
(Appellee‟s Br. at 4.) Specifically, I.R.C. § 1012 provides
that a taxpayer‟s basis in property is generally equal to the
purchase price paid by the taxpayer. That purchase price
includes the amount of the seller‟s liabilities assumed by the
taxpayer as part of the purchase, on the assumption that the
taxpayer will eventually repay those liabilities. See Comm’r
v. Tufts, 461 U.S. 300, 308-09 (1983) (noting that a loan must
be recourse to the taxpayer to be included in basis). But in a
CARDS transaction, the Commissioner argues, the taxpayer
and the foreign borrower agree that the taxpayer will repay
only the portion of the loan equal to the amount of currency
4
foreign currency he purchased for United States dollars. That
exchange is a taxable event, and the taxpayer claims a loss
equal to the full amount of his supposed basis in the CARDS
Loan, less the proceeds of the relatively small amount of
currency actually exchanged. The taxpayer uses that loss to
shelter unrelated income.4
CARDS marketing materials describe the transaction
as providing “financing” to the taxpayer. However, there is
no net cash available to the taxpayer, because the foreign
bank requires that all of the currency purchased with the
proceeds of the CARDS Loan (including the portion
purchased by the taxpayer) remain at the bank as collateral
for the CARDS Loan. The taxpayer only has access to the
proceeds of the CARDS Loan if he delivers to the bank an
equal amount of cash, cash equivalents, or other collateral
acceptable to the bank.
In 2000, prior to the events involved in this case, the
Internal Revenue Service (“IRS”) warned taxpayers about
taking tax deductions based on artificial losses generated by
inflated bases in certain assets. See Notice 2000-44, 2000-2
C.B. 255 (Aug. 13, 2000) (“Tax Avoidance Using Artificially
High Basis”). The Notice containing that warning said that
the IRS would not recognize transactions that created an
artificially high basis if they lacked economic substance or a
valid business purpose. After the IRS discovered the
the taxpayer actually purchases.
4
The general structure of a CARDS transaction is well
and thoroughly set forth in Gustashaw v. Commissioner, 696
F.3d 1124, 1127-28, 1130-31 (11th Cir. 2012).
5
widespread use of CARDS, and before Crispin had filed the
tax return at issue in this case, the IRS issued another Notice
specifically addressed to CARDS transactions and explaining
their technical flaws. See Notice 2002-21, 2002-1 C.B. 730(Mar. 18, 2002) (“Tax Avoidance Using Inflated Basis”).
The IRS also imposed disclosure obligations on CARDS
promoters and users. Eventually, the IRS announced a
settlement initiative that allowed CARDS users to avoid
penalties for gross valuation misstatements applicable under
I.R.C. § 6662, provided that they conceded their CARDS-
related tax benefits and agreed to pay a reduced penalty. See
Announcement 2005-80, 2005-2 C.B. 967 (Oct. 28, 2005).
Some 2,000 taxpayers elected to settle, paying roughly $2
billion in back taxes.
The CARDS transaction at issue in this case was used
by Crispin to shelter more than $7 million of income for the
2001 tax year. He learned of the CARDS opportunity from
Roy Hahn, the founder of Chenery Associates, Inc.
(“Chenery”), which promoted CARDS and other tax shelter
transactions. Crispin claims that Hahn approached him at a
time when he (Crispin) planned to have Murus acquire the
Aircraft but had not yet arranged financing for that purchase.
Hahn proposed to Crispin that he enter into a CARDS
transaction that Chenery had designed for another client who
had decided not to proceed. In that transaction, a foreign
entity would enter into a 30-year CARDS Loan denominated
in a Swiss francs; the loan proceeds would be retained by the
lender; Crispin would purchase 15 percent of the foreign
currency obtained through the CARDS Loan, and he would
agree to be jointly and severally liable for the entire CARDS
Loan; he would agree to repay the principal at the maturity
date; and he would exchange the foreign currency he
6
purchased for United States dollars, claiming as his basis the
full amount of the CARDS Loan and garnering a tax loss
equal to 85 percent of the total loan value. Hahn also
provided Crispin with a sample tax opinion blessing the
transaction.5
Crispin decided to proceed with the transaction. He
also informed his partner in the mortgage securities business
about the CARDS transaction, and the partner agreed to
participate as well, with Murus taking a one-third share equal
to Crispin‟s share in that business, and the partner taking the
remaining two-thirds. Crispin advised Chenery that Murus
would realize $7.6 million in income in 2001 from the
mortgage securities business, and the transaction that Chenery
5
Crispin claims that the CARDS transaction proposed
to him had attractive characteristics beyond the tax benefits.
He says that the terms of the loan were already negotiated and
documented, the loan was available at a time when new loans
for the aviation industry were scarce, and the interest rate on
the loan was tied to a Swiss benchmark rate that was lower
than other comparable interest rates. He also says that,
although only cash and cash equivalents were acceptable as
collateral for the proposed CARDS Loan, he anticipated
being able to substitute the Aircraft for cash as collateral after
the expected purchase of those planes in 2002. Crispin also
claims that he spoke with a representative of the proposed
lender who said that aircraft would be favorably considered in
place of cash as collateral for the CARDS Loan, although the
collateral substitution would have to be approved by the
bank‟s credit committee.
7
designed generated losses that were almost exactly equal to
both partners‟ 2001 income from that business.6
Chenery arranged the CARDS transaction with
Croxley Financial Trading LLC (“Croxley”) serving as the
foreign borrower7 and Zurich Bank and its affiliates
(collectively “Zurich”) as the lender. In early December
2001, Zurich loaned 74 million Swiss francs to Croxley for a
stated 30-year term but callable and repayable at any time
after the first year. The proceeds of the CARDS Loan were
6
Crispin again emphasizes that his CARDS
transaction had already been designed for another Chenery
client who had decided not to proceed, and that he “never
requested a specific „loss‟ deduction from Chenery.”
(Appellant‟s Opening Br. at 10.) He further asserts that he
offered his partner a two-thirds participation in the transaction
because he was only able to utilize one-third of the CARDS
Loan that had already been arranged by Chenery its other
client. However, there is no evidence in the record that the
amount of the CARDS Loan, or any of the other amounts
involved in the transaction, were fixed prior to the decision by
Crispin and his partner to proceed.
7
Croxley is a Delaware limited liability company with
executive offices in the Cayman Islands. Its sole member is
Dextra Bank & Trust Co. Ltd., a private bank organized under
the laws of the Cayman Islands. For U.S. tax purposes, a
single-member limited liability company is disregarded as an
entity separate from its owner. Treas. Reg. § 301.7701-
3(b)(1)(ii). Consequently, Dextra Bank, through Croxley,
functioned as the foreign borrower in Crispin‟s CARDS
transaction.
8
transferred to Croxley‟s account at Zurich and pledged to
Zurich as collateral for the loan. In late December 2001,
Croxley sold Crispin 4.8 million Swiss francs (the “loan
assumption proceeds”) in exchange for Crispin‟s agreement
to be jointly and severally liable for a share of Croxley‟s loan
obligations to Zurich with a value of $9.4 million.8 Crispin
immediately transferred the loan assumption proceeds to the
Zurich account of Murus, which in turn guaranteed Crispin‟s
loan obligations, and which pledged the Swiss francs to
Zurich as collateral for the loan. On the same day, Murus
exchanged 3.1 million Swiss francs for United States dollars.
Murus received $1.8 million, which it used to purchase a
Zurich promissory note that matured at the end of one year
and that was held by Zurich as collateral for Murus‟s
guaranty of Crispin‟s obligations on the CARDS Loan.9
8
At the time of the transaction, the exchange rate was
approximately 1.7 Swiss francs per 1 U.S. dollar. (See
Supplemental App. at 136 (noting the exchange rate as 0.59
U.S. dollars per 1 Swiss franc).)
As discussed above, a CARDS transaction effectively
involves two separate agreements by the U.S. taxpayer with
respect to the CARDS Loan – the first in which the taxpayer
agrees to assume a share of the loan in conjunction with the
purchase of a relatively small percentage of the foreign
currency obtained by the foreign borrower, and the second in
which the taxpayer agrees to be jointly and severally liable
for the entire CARDS Loan to establish his full basis in that
loan.
9
Crispin says that “aircraft industry transactions are
conducted in the [sic] U.S. Dollars, so the conversion of
Swiss Francs to U.S. dollars was a business necessity”
(Appellant‟s Opening Br. at 10), and that the amount of Swiss
9
In August 2002, Zurich notified Croxley and Crispin
that it was exercising its right to terminate the CARDS Loan.
The collateral securing Murus‟s guarantee was transferred to
Croxley, which used it, together with the remainder of the
loan proceeds held by Zurich, to repay the loan. The Croxley
loan ended up lasting approximately one year, which was
typical of the CARDS Loans that Zurich provided to Chenery
clients.10
In April 2002, prior to filing his and Murus‟s 2001 tax
returns, Crispin engaged Pullman & Comley, LLC
(“Pullman”), a law firm that provided opinion letters for other
Chenery clients, to provide a tax opinion regarding the
CARDS transaction (the “Pullman Opinion”). The Pullman
Opinion noted that the IRS had expressed negative views of
the economic substance and other aspects of CARDS
transactions. However, Pullman opined that Crispin‟s
transaction “should have sufficient business purpose to be
respected” by the IRS because “[t]he business purpose for
[his] entering into the [t]ransactions is clear” and “[t]he
financing available to [him] through the [t]ransactions has
reduced [his] costs and has afforded [him] the ability to have
francs that he purchased, when converted into U.S. dollars,
“was the amount of financing need to acquire the Aircraft.”
(Id. at 9). There is no evidence in the record as to the
proposed purchase price of the Aircraft.
10
It was also typical of CARDS transactions Chenery
engineered with another financial institution. See Gustashaw,
696 F.3d at 1131-32 (discussing the one-year actual duration
of the CARDS loan provided in that case by a German bank
that had participated in other Chenery CARDS transactions).
10
access to large amounts of capital on a long-term basis to
operate the business of Murus.” (Supplemental App. at 87.)
Murus listed a loss of $7.6 million on its 2001 tax
return, the difference between its claimed basis (equal to
Crispin‟s $9.4 million assumed share of the CARDS Loan,
guaranteed by Murus) and the $1.8 million of proceeds it
received from the currency exchange.11 That loss offset
virtually all of Murus‟s income for 2001. As a result, Crispin
reported only $3,244 of flow-through income from Murus on
his personal income tax return for 2001.12
B. Procedural History
After the IRS discovered Crispin‟s CARDS
transaction, the Commissioner disallowed the $7.6 million
ordinary loss deduction that Murus had taken. In July 2007,
the Commissioner sent Crispin a notice of deficiency for the
2001 tax year that required payment of an additional $3.1
11
Before he filed his 2001 tax return, Crispin was
advised by Chenery of an IRS program that would have
allowed him to avoid penalties if he voluntarily disclosed his
participation in a CARDS transaction. Crispin chose not to
do so.
12
Murus, as an S-corporation, is a “flow-through”
entity for tax purposes, pursuant I.R.C. § 1361. See United
States v. Tomko, 562 F.3d 558, 576 n.14 (3d Cir. 2009) (en
banc) (noting that the shareholders of a “„flow-through‟
Subchapter S Corporation” are required to include their share
of the company‟s income, deductions, losses and credits in
their personal income tax returns).
11
million of taxes and a $1.2 million penalty. Crispin filed a
timely appeal with the Tax Court for a redetermination of his
2001 taxes.
In March 2012, the Tax Court issued a memorandum
opinion affirming the Commissioner‟s determination that
Crispin was not entitled to an ordinary loss deduction from
his participation in the CARDS transaction and that he was
liable for the accuracy-related penalty under I.R.C. § 6662.
The Court found that the CARDS transaction lacked
economic substance because Crispin had no valid business
purpose and had tax-avoidance as his primary motivation.13
It further held that Crispin was liable for a 40 percent penalty
for underpayment that results from a gross valuation
misstatement, pursuant to I.R.C. § 6662(h)(1), and that
Crispin was not entitled to relief from the penalty under the
exception applicable to taxpayers who rely on expert tax
advice reasonably and in good faith, pursuant to I.R.C.
§ 6664(c)(1).
This timely appeal followed.
13
The Tax Court‟s decision that Crispin‟s CARDS
transaction lacked economic substance is consistent with that
Court‟s other CARDS cases, all of which have disallowed
deductions associated with those transactions. See Kipnis v.
Comm’r, Nos. 30370-07, 30373-07, 2012 WL 5371787 (U.S.
Tax Ct. 2012); Gustashaw v. Comm’r, 102 T.C.M. (CCH)
161 (2011), aff’d, 696 F.3d 1124 (11th Cir. 2012); Kerman v.
Comm’r, 101 T.C.M. (CCH) 1241 (2011), appeal pending,
No. 11-1822 (6th Cir.); Country Pine Fin., LLC v. Comm’r,
98 T.C.M. (CCH) 410 (2009).
12
II. Discussion14
“While we conduct plenary review of the Tax Court‟s
legal conclusions, we review its factual findings, including its
ultimate finding as to the economic substance of a
transaction, for clear error.” ACM P’ship v. Comm’r, 157
F.3d 231, 245 (3d Cir. 1998). “[T]he Commissioner‟s
deficiency determination is entitled to a presumption of
correctness and ... the burden of production as well as the
ultimate burden of persuasion is placed on the taxpayer.”
Anastasato v. Comm’r, 794 F.2d 884, 887 (3d Cir. 1986).
Crispin argues that the Tax Court erred when it
disallowed the deduction that Murus claimed based on the
CARDS transaction and thus held him liable for a deficiency
for the 2001 tax year. He also contends that, even if he is
liable for the deficiency, the Tax Court erred when it upheld
the Commissioner‟s imposition of the accuracy related
penalty under I.R.C. § 6662. We address each of those
contentions in turn.
14
Because Crispin resided in the United States Virgin
Islands when he filed his petition for review by the Tax
Court, the Court noted that an appeal in Crispin‟s case would
lie in this Circuit, and then followed our law in reaching its
decision. Crispin sought review by the Tax Court pursuant to
I.R.C. §§ 6211, 6212. We have jurisdiction under I.R.C.
§ 7482(a)(1).
13
A. The Liability Decision
Crispin argues that the Tax Court erred in determining
that his CARDS transaction lacked economic substance
because the Court misapplied the pertinent analytical test and
failed to credit testimony that Crispin had a valid business
purpose in using the CARDS Loan. In particular, Crispin
alleges that the business purpose of the CARDS Loan was to
provide long-term financing for the purchase of aircraft to be
used in Murus‟s leasing business.
Section 165 of the Internal Revenue Code provides
that “[t]here shall be allowed as a deduction any loss
sustained during the taxable year and not compensated for by
insurance or otherwise.” I.R.C. § 165(a). However, “[o]nly a
bona fide loss is allowable. Substance and not mere form
shall govern in determining a deductible loss.” Treas. Reg.
§ 1.165-1(b). For a loss to be bona fide, it must therefore
satisfy the economic substance doctrine, among other
requirements.15 “The economic substance doctrine ... applies
where the economic or business purpose of a transaction is
relatively insignificant in relation to the comparatively large
15
The Commissioner has also questioned the
deductibility of Crispin‟s CARDS loss under several other
provisions of the Code, including whether the loss from a
currency transaction was ordinary or capital, under I.R.C.
§ 988, and whether Crispin was “at risk” for the amount of
the deducted loss, as required by I.R.C. § 465. Because the
Tax Court did not address those arguments, and because we
agree that Crispin‟s CARDS transaction fails to satisfy the
economic substance doctrine, we do not address the
Commissioner‟s other arguments.
14
tax benefits that accrue (that is, a transaction ... which
exploit[s] a feature of the tax code without any attendant
economic risk) ... .” Neonatology Assocs., P.A. v. Comm’r,
299 F.3d 221, 231 n.12 (3d Cir. 2002) (citation and internal
quotation marks omitted). “[I]n that situation, where the
transaction was an attempted tax shelter devoid of legitimate
economic substance, the doctrine governs to deny those
benefits.” Id.“The inquiry into whether the taxpayer‟s transactions
had sufficient economic substance to be respected for tax
purposes turns on both the objective economic substance of
the transactions and the subjective business motivation behind
them.” ACM P’ship v. Comm’r, 157 F.3d 231, 247 (3d Cir.
1998) (internal quotation marks omitted). Indicia of objective
economic substance include whether the loss claimed was
real or artificial, Stobie Creek Invs., LLC v. United States,
608 F.3d 1366, 1377 (Fed. Cir. 2010), whether the transaction
was “part of a prepackaged strategy marketed to shelter
taxable gain,” id. at 1379, and “whether the transaction has
any practicable economic effects other than the creation of
income tax losses,” Jacobson v. Comm’r, 915 F.2d 832, 837
(2d Cir. 1990). The subjective intent inquiry focuses on
whether the taxpayer entered into the transaction intended to
serve a useful business purpose, see ACM P’ship, 157 F.3d at
252-54; Lerman v. Comm’r, 939 F.2d 44, 49 (3d Cir. 1991),
and on the “correlation of losses to tax needs coupled with a
general indifference to, or absence of, economic profits,”
Keeler v. Comm’r, 243 F.3d 1212, 1218 (10th Cir. 2001).
The Tax Court found that Crispin‟s CARDS
transaction failed both the objective and subjective tests for
economic substance. The Court noted that Crispin
15
experienced only a paper loss of $7.6 million,16 and that, after
the CARDS Loan was repaid, Crispin experienced no
consequences other than receiving the tax deduction. As a
result, the Court concluded that “[t]he ordinary loss claimed
from the CARDS transaction was fictional” (App. at 27),
which it noted was “the hallmark of a transaction lacking
economic substance.” (Id. at 28.)
As to Crispin‟s stated business purpose, the Tax Court
determined that both the structure of the CARDS transaction
and the record belie Crispin‟s contention that he engaged in
the transaction to obtain long-term financing for use in his
aircraft leasing business. Although the Zurich loan had a
stated 30-year maturity, the proceeds remained in Zurich‟s
complete possession and control as collateral for the loan, and
Zurich had the ability to call the loan at any time after the first
year, which it in fact did. Also, Crispin never took any action
to obtain and use the proceeds of the loan, knowing that he
would have to post an offsetting amount of cash collateral.
Nor did he ever take any steps to secure Zurich‟s approval to
substitute aircraft for cash as collateral for the loan. Finally,
there was no potential for profit, because the interest rate
charged on the CARDS Loan was greater than the interest
paid on the proceeds deposited as collateral at Zurich. Based
on the foregoing, all of which is well-supported by the record,
we see no error, let alone clear error, in the Tax Court‟s
16
The Tax Court noted that the true net cost of the
CARDS transaction to Crispin was only $72,926, primarily
the structuring fee paid to Chenery and the cost of the
Pullman Opinion. The ordinary loss actually reported by
Murus, by comparison, was $7,641,706.
16
ultimate finding that Crispin‟s CARDS transaction lacked
economic substance.
Crispin objects to the Tax Court‟s conclusion that
much of his testimony on the business purpose of his CARDS
transaction was not credible. In particular, the Court
discounted his testimony that he had approached Zurich about
substituting aircraft for cash as collateral for the CARDS
Loan, and that he had received assurances from Zurich that it
would consider such a change. Evidently that testimony – as
well as expert testimony regarding the potential profit that
could be generated by using the CARDS Loan proceeds to
purchase aircraft – were unimpressive, because the Court
found that Crispin did not actually plan to pursue the
substitution of collateral. Crispin‟s protestations of
unfairness in that finding ring hollow. Assessing whether
“taxpayers‟ fact witnesses testified incredibly with regard to
material aspects of th[e] case, and that their testimony ... was
self-serving, vague, elusive, uncorroborated, and/or
inconsistent with documentary and other reliable evidence”
constitutes the kind of “credibility determinations ...
ensconced firmly within the province of a trial court, afforded
broad deference on appeal.” Neonatology Assocs., 299 F.3d
at 229 n.9 (internal quotation marks omitted). In this case,
there was ample documentary and testimonial evidence that
contradicted Crispin‟s account of the business purpose of his
CARDS transaction, and the Tax Court did not abuse its
discretion in deciding not to credit Crispin‟s evidence.
B. The Penalty Decision
Crispin argues that, even if we affirm the
Commissioner‟s disallowance of the deduction that he took
17
based on his CARDS transaction loss, he ought not be liable
for the gross valuation misstatement penalty. He contends
that “[t]he overvaluation penalty should only be applicable
where there is an underpayment attributable to an inflated
value of an asset within the meaning of the penalty,” and that
the Tax Court failed to make the requisite finding as to how
he had improperly inflated, i.e., overstated, the value of the
asset claimed in his 2001 tax return. (Appellant‟s Opening
Br. at 56 (citing Todd v. Comm’r, 862 F.2d 540, 543 (5th Cir.
1988), and Gainer v. Comm’r, 893 F.2d 225, 228 (9th Cir.
1990); Reply at 19.) Crispin also contends that, even if the
valuation misstatement penalty would normally apply, he is
entitled to relief because he relied in good faith on the
Pullman Opinion. Both of those arguments fail.
1. Applicability of the Valuation
Misstatement Penalty
Section 6662 of the Internal Revenue Code imposes a
20 percent penalty with respect to underpayment that results
from a “substantial valuation misstatement,” which includes a
misstatement of “basis” if “the adjusted basis of any
property[] claimed on any return of tax imposed by chapter 1
is 200 percent or more of the amount determined to be the
correct amount of such . . . adjusted basis.”17 I.R.C.
17
With exceptions not relevant in this case, “[t]he
basis of property shall be the cost of such property ... .” I.R.C.
§ 1012(a). Typically, the “cost” of an asset “is equal to the
cost to the taxpayer of acquiring the asset.” Muserlain v.
Comm’r, 932 F.2d 109, 114 (2d Cir. 1991); see also Parsons
v. United States, 227 F.2d 437, 438 (3d Cir. 1955) (noting
that “cost to the taxpayer [is] represented by the taxpayer‟s
18
§ 6662(b)(1)-(3), (e)(1)(A). That section goes on to increase
the penalty to 40 percent if the taxpayer claims an adjusted
basis in the property that is 400 percent or more of the correct
amount; this is known as a “gross valuation misstatement.”
Id. § 6662(h). We have held that, “where a claimed tax
benefit is disallowed because it is an integral part of a
transaction lacking economic substance, the imposition of the
valuation overstatement penalty is properly imposed ... .”
Merino v. Comm’r, 196 F.3d 147, 159 (3d Cir. 1999).18
outlay” (internal quotation marks omitted)); supra note 3
(recognizing that the taxpayer‟s acquisition cost can under
certain circumstances include the seller‟s liabilities).
18
Our sister circuits are divided as to whether the
valuation misstatement penalty applies to tax deductions that
have been totally disallowed under the economic substance
doctrine. Compare Fidelity Int’l Currency Advisor A Fund,
LLC v. United States, 661 F.3d 667, 671-75 (1st Cir. 2011)
(holding that the penalty is applicable), Zfass v. Comm’r, 118
F.3d 184, 190 (4th Cir. 1997) (same), Gilman v. Comm’r, 933
F.2d 143, 151 (2d Cir. 1991) (same), and Massengill v.
Comm’r, 876 F.2d 616, 619-20 (8th Cir. 1989) (same), with
Heasley v. Comm’r, 902 F.2d 380, 383 (5th Cir. 1990)
(holding that when the IRS totally disallows a deduction, the
underpayment is “not attributable to a valuation
overstatement” but rather to claiming an improper deduction),
Gainer v. Comm’r, 893 F.2d 225, 228 (9th Cir. 1990) (same),
and Todd v. Comm’r, 862 F.2d 540, 543 (5th Cir. 1988)
(holding that the penalty was inapplicable when the
deficiency was not due to overstated basis but to a failure to
place property into service). However, Crispin‟s reliance on
Todd and Gainer is misplaced because they do not state the
19
law of this Circuit. See Merino v. Comm’r, 196 F.3d 147,
157-159 (3d Cir. 1999) (holding that the valuation
misstatement penalty applies to property acquired in a
transaction found to lack economic substance and expressly
declining to follow Todd and Heasley).
Our reasoning as to the applicability of the valuation
misstatement penalty finds support in the recent decision of
the United States Court of Appeals for the Eleventh Circuit in
Gustashaw, supra. In that case, the taxpayer conceded the tax
deficiency that the Commissioner had assessed as a result of
the disallowance of a CARDS Loan loss, so the economic
substance issue was not before the Court, but the taxpayer
contested the penalties. Applying the “majority rule,” the
Eleventh Circuit held that the 40 percent penalty applies
“even if the deduction is totally disallowed because the
underlying transaction, which is intertwined with the
overvaluation misstatement, lacked economic substance.” 696
F.3d at 1136. Also, the Fifth and Ninth Circuits “have
questioned the wisdom of their positions” in Todd, Heasley,
and Gainer because those positions create the “anomalous
result” of relieving a taxpayer of the penalty when a
deduction is disallowed because it is so egregious that it is
improper for a reason other than valuation, such as a lack of
economic substance, See Bemont Investments, L.L.C. ex rel.
Tax Matters Partner v. United States, 679 F.3d 339, 355 (5th
Cir. 2012) (Prado, J., concurring) (noting that the
“Todd/Heasley rule,” by “[a]mplifying the egregiousness of
the scheme – to the point where the transaction is an utter
sham – could ... , perversely, shield the taxpayer from liability
for overvaluation”); Keller v. Comm’r., 556 F.3d 1056, 1061
(9th Cir. 2009) (recognizing that the rule as expressed in most
Circuits, including Merino, is a “sensible method of resolving
20
In this case, it is not entirely clear how the Tax Court
determined the correct basis of the “asset” at issue, namely
the “loan assumption proceeds” (App. at 27), even though it
did conclude that Crispin made a gross valuation
misstatement when he claimed $9.4 million in adjusted basis
for that asset on his 2001 tax return. There are two ways one
might think about a basis determination and the consequent
amount of a valuation overstatement in a CARDS transaction,
both of which provide grounds for affirmance. Cf. ACM
P’ship, 157 F.3d at 249 n.33 (noting that a court of appeals
may affirm a decision of the Tax Court on any grounds
supported by the record, regardless of the Tax Court‟s
rationale).
One way is to take the entire CARDS Loan for which
the taxpayer agreed to be jointly and severally liable ($9.4
million in Crispin‟s case) and ask what it cost the taxpayer to
enter into that loan. That cost, which may be viewed as
representing the taxpayer‟s basis, see supra note 17, can
rightly be seen in the CARDS context as limited to the value
of the foreign currency actually purchased by the taxpayer
and exchanged for U.S. dollars ($1.8 million here).19 The
overvaluation cases” because it “cuts off at the pass what
might seem to be an anomalous result – allowing a party to
avoid tax penalties by engaging in behavior one might
suppose would implicate more tax penalties, not fewer[,]” but
acknowledging that, “[n]onetheless, in this circuit we are
constrained by Gainer”).
19
The $1.8 million also represents the fair market
value of the asset (i.e., the foreign currency) that Crispin
actually purchased in his CARDS transaction. The basis in
21
amount of the valuation misstatement is thus the difference
between the basis that Murus claimed on its 2001 tax return
and that cost. (The difference is the $7.6 million deduction
claimed by Murus and disallowed by the Commissioner,
resulting in an equivalent upward adjustment in Crispin‟s
taxable income.) Cf. Merino, 196 F.3d at 151 (noting that the
parties had stipulated that the fair market value of the asset
(which the Court appears to have used as a proxy for cost
basis) was less than $50,000).
Another way to consider a CARDS loan is not as one
transaction but as two closely related transactions: first, the
purchase and exchange of the foreign currency (for which the
taxpayer actually assumed liability, see supra note 8) and
second, the agreement to be jointly and severally liable for the
amount of the CARDS Loan in excess of that purchase.
Focusing only on the second CARDS-related transaction, the
basis is zero because that part of the transaction plainly lacks
economic substance. Therefore, the overstatement is the full
amount of the basis attributable to that second transaction
(again, in this case, the $7.6 million deduction disallowed by
the Commissioner.) Cf. Gustashaw, 696 F.3d at 1133 (noting
that “a basis of zero ... is the correct amount when a
transaction lacks economic substance”).
property may be limited to its fair market value, rather than to
the taxpayer‟s outlay, “where a transaction is not conducted
on at arm‟s-length by two economically self-interested parties
or where a transaction is based upon „peculiar circumstances‟
which influence the purchaser to agree to a price in excess of
the property‟s fair market value.” Lemmen v. Comm’r, 77
T.C. 1326, 1348 (1981) (quoting Bixby v. Comm’r, 58 T.C.
757, 776 (1972)) (internal quotation marks omitted).
22
The amount of the valuation misstatement and of the
deduction disallowed in this case are the same under either
approach, and the explanation of the tax deficiency that the
Commissioner sent to Murus alludes to both approaches.
(See Supplemental App. at 135 (disallowing the $7.6 million
deduction because the “transaction as a whole lacks economic
substance”); id. at 125 (concluding that “the taxpayer‟s basis
should be limited to the fair market value of the assets
received rather than the full loan amount”)). But the
calculation of the percentage overstatement is not the same –
$9.4 million divided by $1.8 million under the first approach,
and $7.6 million divided by $0 under the second. The latter
calculation, of course, results in an undefined percentage
overstatement which the Commissioner treats as meeting the
400 percent threshold. See Treas. Reg. § 1.6662-5(g)
(providing that the “adjusted basis claimed on a return of any
property with a correct ... adjusted basis of zero is considered
to be 400 percent or more of the correct amount[] ... and the
applicable penalty rate is 40 percent”). For purposes of this
case, then, either calculation yields an overstatement of more
than 400 percent, so that the 40 percent penalty under I.R.C.
§ 6662 applies. Consequently, we need not, and do not,
decide which is the correct or better approach, though we
urge the Commissioner to clarify his interpretation of the law
on this point.
In either case, because the underpayment in Crispin‟s
taxes is directly traceable to the inflated basis in the loan
assumption proceeds, that underpayment is “attributable to” a
valuation misstatement of over 400 percent, and the 40
percent penalty is applicable to Crispin‟s underpayment of his
2001 taxes.
23
2. Reasonable Reliance on the Pullman
Opinion
I.R.C. § 6664(c) provides relief from the
underpayment penalties in the form of a “reasonable cause
exception” pursuant to which “[n]o penalty shall be imposed
under section 6662 ... with respect to any portion of an
underpayment if it is shown that there was a reasonable cause
for such portion and that the taxpayer acted in good faith with
respect to such portion.” I.R.C. § 6664(c)(1). “The
determination of whether a taxpayer acted with reasonable
cause and in good faith is made on a case-by-case basis,
taking into account all pertinent facts and circumstances.”
Treas. Reg. § 1.6664-4(b)(1). “Circumstances that may
indicate reasonable cause and good faith include an honest
misunderstanding of fact or law that is reasonable in light of
all of the facts and circumstances, including the experience,
knowledge, and education of the taxpayer.” Id.The facts and circumstances of this case demonstrate
that there was nothing reasonable about Crispin‟s reliance on
the Pullman Opinion to immunize him from the
underpayment penalty. Prior to Crispin‟s filing his 2001 tax
return, the IRS, in its Notice 2002-21, 2002-1 C.B. 730 (Mar.
18, 2002), told taxpayers that losses on CARDS transactions
could not be deducted from ordinary income. The Pullman
Opinion specifically referred to Notice 2002-21 and advised
Crispin that the IRS had “concluded that no loss was
allowable in the circumstances described therein ... .”
(Supplemental App. at 82; see also id. at 83 (advising Crispin
that Notice 2002-21 designated CARDS as “listed
transactions” on which “the Service may impose various
penalties”).) Crispin‟s “experience, knowledge, and
24
education,” see Treas. Reg. § 1.6664-4(b)(1), as a former
CPA and chief financial officer also strongly suggest enough
familiarity with tax matters that he should be expected to
have understood the warnings that Pullman included in the
opinion.20
Furthermore, “[w]hile it is true that actual reliance on
the tax advice of an independent, competent professional may
negate a finding of negligence [for purposes of § 6662], the
reliance itself must be objectively reasonable in the sense that
the taxpayer supplied the professional with all the necessary
information to assess the tax matter ... .” Neonatology
Assocs., 299 F.3d at 234. In particular, the advice on which
the taxpayer claims reasonable reliance must not be based on
an “inaccurate representation or assumption as to the
taxpayer‟s purposes for entering into a transaction or for
structuring a transaction in a particular manner.” Treas. Reg.
§ 1.6664-4(c)(1)(ii). That standard is not met here because,
as the Pullman Opinion itself makes clear, Pullman based its
opinion on a series of misrepresentations by Crispin.
For example, Crispin represented to Pullman that the
business purpose of the transaction was to reduce borrowing
costs and to afford Crispin “the ability to have access to large
amounts of capital on a long-term basis to operate the
20
Litigation in which Crispin was involved prior to the
current lawsuit also indicates that Crispin is knowledgeable
about tax matters generally and about tax shelters in
particular. See CMA Consol., Inc. v. Comm’r, 89 T.C.M.
(CCH) 701 (2005) (disallowing most of the deductions
associated with a tax shelter used by Crispin in the early
1990‟s).
25
business of Murus.” (Supplemental App. at 87.) However,
Crispin knew or should have known that that representation
was false, given that aircraft were not approved as collateral,
which would have been necessary for Murus to make use of
the CARDS Loan, and further given that the loan was in
essence a one-year revolving credit facility callable at any
time after the first year. Crispin also represented to Pullman
that “[n]either Chenery nor any other party provided any tax
related promotional material to [him] prior to [his] entering
into” the CARDS transaction. (Supplemental App. at 79.)
But Chenery founder Hahn had presented a CARDS
transaction proposal to Crispin that included promotional
materials describing the associated tax benefits, as well as a
sample tax opinion. When a taxpayer relies on advice that is
based on the taxpayer‟s own misrepresentations, that reliance
is neither reasonable nor in good faith.21 See Treas. Reg. §
21The Tax Court also found that “the record does not
reflect that petitioner actually relied on the tax opinion”
because “[Crispin] received the finalized opinion after the
2001 tax returns for [Crispin] and Murus were filed.” (App.
at 33.) Crispin points out that, although the final Pullman
Opinion was dated April 29, 2002 (two weeks after he had
filed his 2001 returns), the stipulated record contains an
April 12, 2002 engagement letter to which a draft opinion
letter had been attached, with the understanding that the final
letter would be backdated to April 12. The Tax Court
concluded that, because no draft of the Pullman Opinion was
in the record, Crispin could not show that the factual
assumptions and analysis in the draft on which Crispin claims
reliance were the same as those in the final Pullman Opinion.
Because we conclude that Crispin‟s reliance on the Pullman
Opinion was neither reasonable nor in good faith, we need not
26
1.6664-4(b)(1) (“Reliance ... on the advice of a professional
tax advisor or an appraiser does not necessarily demonstrate
reasonable cause and good faith.”).
III. Conclusion
“When, as here, a taxpayer is presented with what
would appear to be a fabulous opportunity to avoid tax
obligations, he should recognize that he proceeds at his own
peril.” Neonatology Assocs., 299 F.3d at 234. Crispin
gambled at CARDS and lost, and he is liable for both the
underpayment of his taxes and the accuracy-related penalty as
determined by the Commissioner.
Accordingly, we will affirm the decision of the Tax
Court.
address this issue.
27