Barlow, Jr. v. District of Columbia

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 24-TX-0500

MILTON A. BARLOW, JR., APPELLANT,

V.

DISTRICT OF COLUMBIA, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(2022-CVT-000740)

(Laura A. Cordero, Judge)

(Argued November 12, 2025 Decided May 14, 2026)

Kerry J. Davidson for appellant.

Thais-Lyn Trayer, Deputy Solicitor General, with whom Brian L. Schwalb,

Attorney General for the District of Columbia, Caroline S. Van Zile, Solicitor

General, Ashwin P. Phatak, Principal Deputy Solicitor General, were on the brief,

for appellee.

Before BECKWITH and DEAHL, Associate Judges, and WASHINGTON, Senior

Judge.

BECKWITH, Associate Judge: Milton A. Barlow, Jr., was the primary

beneficiary of a trust established to benefit him as well as his relatives. The trustee,

Austin Trust Company (ATC), purchased a residential property in the District of

Columbia on behalf of the trust and paid taxes on the property at the time of

2

purchase. Fourteen years later, the trust was dissolved and ATC deeded the property

to Mr. Barlow. Although Mr. Barlow initially paid taxes on this property transfer

and the recordation of the deed, he now seeks a refund, arguing that his deed is

exempt from these taxes under District law. Because the tax exemptions Mr. Barlow

cites—the statutory tax exemptions for “[s]upplemental deeds,” D.C. Code

§§ 42-1101(15), 42-1102(6), 47-902(8), and the tax exemptions provided by District

regulations, 9 D.C.M.R. §§ 509.1, 609.1—do not apply here, we affirm the trial

court’s grant of summary judgment to the District.

I. Background

Mr. Barlow’s father (the settlor) created an irrevocable trust—a trust that

requires the settlor to cede nonfiduciary control of the property in the trust—for the

primary benefit of Mr. Barlow. See generally Amy Morris Hess et al., Bogert’s The

Law of Trusts and Trustees § 234 (3d ed. May 2025 update) [hereinafter Bogert];

Restatement (Third) of Trusts § 63 cmt. c(1) (A.L.I. 2003). The trust agreement

granted the trustee, later designated as ATC, “the widest latitude in the exercise of

[its] powers,” including selling trust property and managing that real property as if

it “were the absolute owner[] thereof.” 1 The trust agreement also designated the

1

Without deciding, we assume, like the litigants do, that the trust agreement

and the trust should be construed according to District law.

3

settlor’s wife and Mr. Barlow’s siblings as secondary beneficiaries who were eligible

for disbursements from the trust at ATC’s discretion.

In 2007, at Mr. Barlow’s direction, ATC purchased and recorded a deed to the

property at the center of this dispute. Soon after, the trust paid $31,029.98 in transfer

and recordation taxes to the District of Columbia. ATC was the record owner of the

property for fourteen years until 2021 when the trust was dissolved and the property

was transferred for no consideration to Mr. Barlow, who executed and recorded his

deed to the property. Mr. Barlow paid transfer and recordation taxes to the District

in the amount of $53,181.36. Mr. Barlow then sought a refund for the taxes, arguing

that his deed was exempt under District law. The Office of Tax and Revenue (OTR)

denied his claim, stating in relevant part that his deed was ineligible for an exemption

under the District’s regulation. 2 See 9 D.C.M.R. § 509.

Mr. Barlow then petitioned the Superior Court to review the denial of his

refund claim. In granting the District’s motion for summary judgment, the trial court

concluded that the property transfer and recordation of the 2021 deed were subject

to taxation because the trust was “legally distinct and separate” from Mr. Barlow,

2

OTR also stated that generally a trustee cannot be a trust beneficiary’s

nominal grantee under the District’s regulation. The trial court did not rely on that

reasoning in ruling for the District. As Mr. Barlow does not raise the issue on appeal,

we do not address whether a trustee is categorically ineligible to act as a trust

beneficiary’s nominal grantee under the District’s regulations.

4

and “under District of Columbia law, recordation and transfer taxes are imposed on

each change in the legal entity owning real property.” 3 Mr. Barlow appealed after

the trial court denied his motion for reconsideration.

II. Statutory and Regulatory Framework

The District collects taxes on the transfer of real property and the recordation

of deeds. Generally, when real property is transferred in D.C., a recordation tax and

a transfer tax are imposed based on the property’s fair market value or the

consideration paid. See D.C. Code §§ 47-1431(a) (recordation of deed required

within thirty days of execution), 42-1103(a)(1) (recordation tax), 47-903(a)(1)

3

Mr. Barlow argues that the trial court erred in finding that the “Trustee

transferred the Property from the Trust to Petitioner” because “[w]hile funds to

purchase the Property indeed came from the Trust, the Property itself was titled to

the corporation ATC, not to the Trust.” The District notes that this “is a new

argument on appeal that this Court should disregard.” Even so, we see no support in

the record for Mr. Barlow’s position because the 2007 and 2021 deeds expressly

identify ATC as “Trustee of the Milton A. Barlow Trust [established] January 24,

1964 for the benefit of Milton Allan Barlow, Jr.” Indeed, as Mr. Barlow

acknowledges, D.C. “law allows for a trustee to hold real property on behalf of a

Trust.” See D.C. Code § 19-1304.18 (permitting property transferred to a trust to be

titled in the name of the trust or trustee); see also Bogert § 1 (defining a trustee as

an “individual or entity . . . that holds the trust property for the benefit of another”).

In identifying ATC as trustee, the 2007 and 2021 deeds made clear that the property

was within the trust. Thus, the trial court did not err (and certainly did not clearly

err) in determining that the 2021 deed transferred the property from the trust, and

not from ATC as an entity separate from the trust. Although Mr. Barlow suggests

the 2007 deed reflected a “specific designation” for his benefit, the language he cites

merely restated the formal name of the trust.

5

(transfer tax). The D.C. Code enumerates certain exemptions to each of these taxes.

Id. §§ 42-1102 (recordation tax exemptions), 47-902 (transfer tax exemptions). The

taxpayer seeking to exempt a transfer of real property from these taxes “bears the

burden of proving that an exemption applies.” Vornado 3040 M St. LLC v. District

of Columbia, 318 A.3d 1185, 1191-92 (D.C. 2024); D.C. Code §§ 42-1107, 47-907;

see also Commonwealth Land Title Ins. v. District of Columbia, 343 A.3d 914, 918

(D.C. 2025).

At issue here are the tax exemptions for the recordation and transfer of real

property through a supplemental deed. D.C. Code § 42-1102(6); see also id.

§ 47-902(8). A supplemental deed is “a deed that confirms, corrects, modifies, or

supplements a prior recorded deed without additional consideration.” Id.

§ 42-1101(15). District regulations further define a supplemental deed—exempt

from taxation—to include transfers subsequently executed without consideration

where:

[T]he grantee named in a recorded deed upon which the

applicable tax has been paid acted as a nominal grantee for

the sole purpose of holding, on behalf of another person,

naked title to the property described in the deed . . .

[thereafter] naming as grantee the person on whose behalf

the nominal grantee acted . . . .

9 D.C.M.R. §§ 509.1 (recordation tax exemption), 609.1 (transfer tax exemption).

In other words, the nominal grantee regulations exempt from transfer and

6

recordation taxes certain deeds and transfers involving a third party that holds naked

title on behalf of another. Because the language of these recordation and transfer tax

regulations is nearly identical, we analyze and refer to them together simply as the

nominal grantee regulations. See id. §§ 509.1, 609.1.

III. Analysis

On appeal, Mr. Barlow argues that the 2021 deed and transfer should be

exempt from transfer and recordation taxes both under the supplemental deed

exemptions 4 and the implementing regulations’ nominal grantee exemption.

Because the coverage of the supplemental deed provisions and the nominal grantee

regulations does not completely overlap, we address them separately and also briefly

consider Mr. Barlow’s other contentions.

4

Although Mr. Barlow seeks to recoup his payment of both the transfer and

recordation tax, he cites only the exemption to the recordation tax, see D.C. Code

§ 42-1102(6); see also id. § 42-1101(15), but not the exemption to the transfer tax,

see id. § 47-902(8). Because these two statutory exemptions are substantially

similar, as the District implies, we treat Mr. Barlow’s briefing as having raised both

exemptions. Compare id. § 42-1101(15) (“[A] deed that confirms, corrects,

modifies, or supplements a prior recorded deed without additional consideration.”),

with id. § 47-902(8) (“Transfers which, without additional consideration, confirm,

correct, modify, or supplement a transfer previously recorded.”).

7

A. Standard of Review

This court reviews orders granting summary judgment de novo. Radbod v.

Moghim, 269 A.3d 1035, 1041 (D.C. 2022). We apply the same standard the

Superior Court applies: “Summary judgment is properly granted only if the record

contains no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law.” Id.; see Super. Ct. Civ. R. 56(a). Though we are bound

to “view the evidence in the light most favorable to the non-moving party, mere

conclusory allegations by the non-moving party are legally insufficient to preclude

entry of summary judgment.” Tobin v. John Grotta Co., 886 A.2d 87, 89-90 (D.C.

2005).

B. Supplemental Deed Provisions

A conveyance of real property between two separate entities such that there is

“a complete change in the legal ownership of the property” does not qualify for tax

exemption under the supplemental deed provision. Cowan v. D.C. Dep’t of Fin. &

Revenue, 454 A.2d 814, 815 (D.C. 1983); see Columbia Realty Venture v. District

of Columbia, 433 A.2d 1075, 1076 (D.C. 1981) (same). The primary question here

is whether the recorded deed and property transfer constituted such a conveyance. If

so, the supplemental deed provisions do not exempt Mr. Barlow from paying the

8

transfer and recordation taxes. 5

Mr. Barlow argues that the trial court erred in ruling that the 2021 deed and

conveyance between him and the trust did not qualify as a supplemental deed. 6 Two

decisions of this court—Columbia Realty Venture v. District of Columbia, 433 A.2d

1075 (D.C. 1981), and Cowan v. District of Columbia Department of Finance &

5

Columbia Realty’s interpretation of the supplemental deed exemption to the

recordation tax (subsequently applied in Cowan) also controls the analysis of the

statutory exemption to the transfer tax given the substantial similarity of the terms

of these two exemptions. See Columbia Realty, 433 A.2d at 1076 (quoting D.C. Code

§ 45-722(6) (1973)); Cowan, 454 A.2d at 815 (citing D.C. Code § 45-922(6)

(1981)); D.C. Code §§ 45-722(6) (1973) (“Deeds which, without additional

consideration[,] confirm, correct, modify, or supplement a deed previously

recorded.”), 45-922(6) (1981) (same), 42-1101(15) (“[A] deed that confirms,

corrects, modifies, or supplements a prior recorded deed without additional

consideration.”); see also id. §§ 47-902(8) (1981) (“Transfers which, without

additional consideration, confirm, correct, modify, or supplement a transfer

previously recorded.”), 47-902(8) (same in current version). The litigants

accordingly address these two statutory exemptions in tandem. See supra note 4.

6

Mr. Barlow also argues in passing that the supplemental deed exemptions

are ambiguous and should be strictly construed against the state. Because Mr.

Barlow presents no argument for why the language is ambiguous, offers no

alternative interpretation for the text, and presents this underdeveloped argument to

a three-judge division that is not in a position to deviate from our past precedent

interpreting the provisions, see supra note 5, we reject his contentions. See Expedia,

Inc. v. District of Columbia, 120 A.3d 623, 632 (D.C. 2015) (finding ambiguity

because “the plain meaning of the statute is open to two reasonable, yet opposing,

interpretations”); M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971) (“No division of

this court will overrule a prior decision of this court . . . .” (citation modified)); see

also 1137 19th St. Assocs. v. District of Columbia, 769 A.2d 155, 161 & n.6 (D.C.

2001) (noting that while tax laws, in general, are strictly construed against the state

if the statute in controversy is unclear and ambiguous, tax exemptions are to be

construed strictly against the party claiming an exemption).

9

Revenue, 454 A.2d 814 (D.C. 1983)—are particularly instructive. Like Mr. Barlow,

the taxpayers in both cases argued that their taxed deeds did nothing more than

“confirm, correct, modify, or supplement a deed previously recorded.” Columbia

Realty, 433 A.2d at 1076 (quoting D.C. Code § 45-722(6) (1973)); accord Cowan,

454 A.2d at 815 (citing D.C. Code § 45-922(6) (1981)).

In Columbia Realty, an unincorporated business trust deeded several parcels

of real property to a limited partnership. 433 A.2d at 1075. The taxpayer argued that,

because “the shareholders of the trust and the holders of the partnership interests in

the [limited partnership] [we]re essentially the same people,” the deeds worked “a

formal, as opposed to actual, change of ownership [that] should not be taxed upon

recordation.” Id. at 1077. We rejected the taxpayer’s argument, however, concluding

that where the trust and the limited partnership both had “the legal capacity to

acquire and hold property distinct from” the individuals that held an interest in them,

“[t]here was a complete change of the lawful owner of the real property” when the

limited partnership acquired the properties from the trust. Id. at 1076.

Notwithstanding that the shareholders of the trust and the holders of the partnership

interests consisted of largely the same participants, the trust and the limited

partnership were still “distinct legal entities.” Id. at 1076, 1078. Columbia Realty

established that a deed conveying real property between two legal entities capable

of holding property for themselves is not exempt from the recordation tax under the

10

supplemental deed provision, even if “the participants in each of the two [entities]

are identical.” Id. at 1076, 1078.

Cowan applied the rule in Columbia Realty to a transfer of real property from

a partnership to an individual who was the sole proprietor of that partnership, again

holding that “[t]he recordation of the deed effected a complete change in the legal

ownership of the property.” 454 A.2d at 815. Because “a partnership holds and

conveys property separately and distinctly from the individuals who hold an interest

in the partnership,” Cowan concluded that this is “the exact event for which the tax

is imposed.” Id. (quoting Columbia Realty, 433 A.2d at 1076). The supplemental

deed provision does not exempt a transfer from the recordation tax if real property

was conveyed from one legal entity to another, even where the taxpayer “was the

participant on both sides” of the transfer. See id.

Under Columbia Realty and Cowan, the supplemental deed provisions do not

apply to the 2021 deed because there was a conveyance of real property from the

trust to Mr. Barlow—two distinct and separate legal entities. The trust, through ATC

as the trustee, had the legal capacity to acquire and hold property distinct from the

beneficiaries of the trust. See D.C. Code §§ 19-1308.15(a)(2), 19-1308.16(1)-(3);

Bogert § 1; Restatement (Third) of Trusts § 2 (A.L.I. 2003). Like the individual in

Cowan, Mr. Barlow was also capable of holding and conveying real property in his

11

own name. See 454 A.2d at 815. Because the 2021 deed was in fact a conveyance

from the trust to Mr. Barlow, there was a complete change in the legal ownership of

the property, and thus the supplemental deed provisions do not apply. See id.

The legislature has the prerogative to create tax exemptions for recorded deeds

and transfers of real property. It has, for example, created tax exemptions for deeds

“between spouses, parent and child, grandparent and grandchild . . . without actual

consideration,” D.C. Code §§ 42-1102(7), 47-902(5), deeds to property transferred

to a “qualifying lower income homeownership household,” id. §§ 42-1102(12),

47-902(9), and deeds to property transferred to a “beneficiary of a revocable trust

[because] of the death of the grantor of the revocable trust,” id. §§ 42-1102(18),

47-902(13). The legislature could have crafted an exemption for deeds to property

transferred from an irrevocable trust to the beneficiary of that trust. It did not do so,

and we cannot circumvent that decision. See Columbia Realty, 433 A.2d at 1079

(“Attempts to expand the statutory exemption at issue in this jurisdiction have been

rejected.”); see also Dupont Park Apartments, Inc. v. District of Columbia, 345 F.2d

109, 110 (D.C. Cir. 1965).

C. Nominal Grantee Regulations

We turn next to Mr. Barlow’s argument that the 2021 deed was exempt from

transfer and recordation taxes under the nominal grantee regulations. For a deed and

12

transfer to be exempt under the nominal grantee regulations, the grantee named in a

prior recorded deed must have “acted as a nominal grantee for the sole purpose of

holding, on behalf of another person, naked title to the property described in the

deed.” 9 D.C.M.R. §§ 509.1, 609.1. 7

7

The District represents that the nominal grantee regulations “typically” apply

to reverse like-kind exchanges under § 1031 of the Internal Revenue Code. See 26

U.S.C. § 1031(a)(1), (3); Vornado 3040 M St. LLC v. District of Columbia, 318 A.3d

1185, 1188 (D.C. 2024) (“In a reverse like-kind exchange, no gain or loss is

recognized if a taxpayer (1) receives a property held for business or investment

purposes and (2) within 180 days, identifies a replacement property to be purchased

and sells the received property as the relinquished property.” (citation modified)).

Mr. Barlow responded at oral argument that the District’s regulations should

likewise apply to the 2021 deed because reverse like-kind exchanges often involve

trusts that have titleholders with considerable managerial powers over trust property

and multiple beneficiaries, just as ATC did. Not so. In an ordinary reverse like-kind

exchange, a titleholder (known as an exchange accommodation titleholder) that

qualifies under the § 1031 scheme is “a single purpose entity formed for the

exclusive purpose of providing services” to the taxpayer, subject to a detailed

“contract[] to cooperate in effecting an exchange of current property.” See Est. of

Bartell v. Comm’r of Internal Revenue, 147 T.C. 140, 148-49 (T.C. 2016)

(describing the numerous contours of the written agreement between a taxpayer and

an exchange accommodation titleholder); see also Rev. Proc. 2000-37, § 4.02(3),

2000-40 I.R.B. 308 (requiring the “titleholder enter into a written agreement” to take

advantage of a § 1031 safe harbor). Moreover, a qualifying titleholder usually would

have no assets other than “a right to acquire the [designated] property and then title

to the [designated] property, subject to various contractual terms governing the

property’s disposition.” See, e.g., Est. of Bartell, 147 T.C. at 148, 166.

ATC, however, was not a single purpose entity but was instead charged with

providing for the “interests of the beneficiaries,” see D.C. Code § 19-1308.02(a)

(trustee’s duty of loyalty), and there has been no indication of a written agreement

between ATC and Mr. Barlow to hold naked title. Also, ATC managed assets other

than the property and had broad rights to hold, sell, and invest any real property

received into the trust corpus, not just a designated parcel. Contrary to Mr. Barlow’s

13

A nominal grantee is a grantee “[e]xisting in name only.” Nominal, Black’s

Law Dictionary (12th ed. 2024); see also Nominal, Black’s Law Dictionary (4th rev.

ed. 1968) (same); Nominal, American Heritage Dictionary (5th ed. 2022) (“Of,

resembling, relating to, or consisting of a name or names. . . . Existing in name only;

not real.”). 8 When ATC took ownership of the property in 2007 it did so in more

than name only because the trust agreement charged ATC with broad powers to hold,

manage, sell, and invest property in the trust as an “absolute owner[] thereof.” Mr.

Barlow contended at oral argument that “the analysis has to be done on the actual

acts of the [grantee]” to determine whether ATC falls within the nominal grantee

regulations—that is, we must evaluate what ATC actually did with respect to the

property rather than what the trust instrument permitted it to do. Even assuming a

grantee’s actions are the only relevant consideration—something that the regulations

do not support 9—ATC’s actions here demonstrate that it owned the property in more

position, ATC was significantly different from a qualifying exchange

accommodation titleholder.

8

Cf. McCarroll v. Alexander, 48 Miss. 128, 136 (1873) (“The grantee who

paid nothing out of his own funds, and incurred no obligation for the price, fills but

a nominal place in the transaction, and is really the medium, only, through whom

the estate comes beneficially to him whose money or means have paid for it.”

(emphasis added)).

9

Adopting Mr. Barlow’s argument would require OTR to assess any number

of actions taken by a putative nominal grantee each time a taxpayer raises the

nominal grantee regulations. Imposing such a requirement would be impracticable

and inconsistent with statutory provisions that place the burden on the taxpayer to

14

than name only: Over the fourteen years it held title, ATC also paid approximately

$200,000 in real estate taxes on the property using funds in the trust. We have held,

albeit in a different context, that “the payment of taxes” on property constitutes an

“act[] of ownership.” Est. of Wells v. Est. of Smith, 576 A.2d 707, 712-13 (D.C.

1990). Likewise, ATC’s act of paying multiple years of real estate taxes on the

property is an act for the purpose of ownership, not for “the sole purpose of holding

. . . naked title to the property” as a nominal grantee. 9 D.C.M.R. §§ 509.1, 609.1.

Even if ATC was a nominal grantee for “another person,” id. §§ 509.1, 609.1,

the assertion that Mr. Barlow in particular would have been that other person 10 is

conclusory because in 2007 the trust had seven named beneficiaries, including Mr.

Barlow, to whom ATC owed a duty of loyalty. See D.C. Code § 19-1308.02(a) (“A

show the District that a conveyance is exempt from tax, not the other way around.

See D.C. Code §§ 47-907, 42-1107.

Even if substantiated, Mr. Barlow’s assertions about the other “acts of the

trust”—such as “allow[ing] him” to renovate and reside on the property and

excluding the property from ATC’s management fee—do not override ATC’s broad

authority over the property under the trust agreement.

10

Mr. Barlow also asserted at oral argument that Columbia Realty is in tension

with the nominal grantee regulations because the exemptions under the regulations’

plain text require a conveyance between two distinct legal entities or “another

person,” while Columbia Realty interpreted the language in the regulations to require

that “the parties be identical” to qualify for the tax exemption. Mr. Barlow cited this

alleged contradiction as reason to “revisit” the analysis in Columbia Realty and

Cowan “all across the board.” As a three-judge panel, however, we cannot overrule

a prior division of this court. See M.A.P., 285 A.2d at 312.

15

trustee shall administer the trust solely in the interests of the beneficiaries.”

(emphasis added)). ATC could not simply disavow its duty as trustee to advance the

interests of the trust’s beneficiaries, including Mr. Barlow’s siblings, in favor of a

different sole purpose. 11 See id.

Mr. Barlow’s remaining contention is that “ATC took every possible step to

create an asset exclusively for [Mr. Barlow] that was no longer under the umbrella

of the [t]rust” in an effort to “become a nominal grantee.” Not only are we

unpersuaded that the property was separate from the trust corpus 12 or that ATC

created an asset exclusively for Mr. Barlow, but to the extent he wishes to exempt

his property transfer from the District’s taxes under a new tax exemption, those

arguments are more suitable for the legislature than this court. Mr. Barlow also

conceded at oral argument that, instead of directing ATC to purchase the property

for the trust, he could have directed ATC to give him the money to acquire the

property and then executed and recorded the 2007 deed in his own name—thereby

obviating the 2021 conveyance and the transfer and recordation taxes disputed here.

11

Mr. Barlow argues that if we do not hold that ATC was a nominal grantee,

then the 2007 deed created an implied bare trust, which held the property separate

from the trust corpus. Mr. Barlow has not cited any case in this jurisdiction that

recognizes the creation of a bare trust, we are not aware of any case, and such an

implied bare trust would appear to contravene the Statute of Frauds given the

absence of any signed writing establishing this trust. See D.C. Code § 28-3503.

12

See supra note 3.

16

But he instead elected to have ATC purchase the property for the trust, a decision

that can offer various tax and financial advantages. See Bogert § 264.10. Even if

every effort was made to structure his affairs to avoid the transfer and recordation

taxes at issue in this appeal, Mr. Barlow assumed the risk that the arrangement might

not meet “the formalistic and often technical requirements of the tax code,” Expedia,

120 A.3d at 644, and that later there may be unintended tax consequences resulting

from that decision, see Vornado 3040, 318 A.3d at 1199. Having assessed all the

arguments before us, we discern no basis to conclude that ATC served as a nominal

grantee for the sole purpose of holding naked title to the property on behalf of Mr.

Barlow. In sum, the nominal grantee regulations do not exempt the 2021 conveyance

from transfer and recordation taxes.

IV. Conclusion

For the foregoing reasons, we affirm the trial court’s grant of summary

judgment in favor of the District.

So ordered.