The opinion
Case: 21-51064 Document: 00516428682 Page: 1 Date Filed: 08/11/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 11, 2022
No. 21-51064 Lyle W. Cayce
Clerk
Daphne Jeanette Rost, Executor of the Estate of John H. Rebold,
Plaintiff—Appellant,
versus
United States of America, the Internal Revenue
Service,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:19-CV-607
Before Smith, Duncan, and Oldham, Circuit Judges.
Stuart Kyle Duncan, Circuit Judge:
In 2005, John Rebold formed the Enelre Foundation as a Stiftung
under the laws of Liechtenstein. Stiftung is a German word meaning, roughly,
“foundation” or “endowment.” Enelre’s purpose is to provide education
and general support for Rebold and his children. Rebold transferred $3
million to Enelre’s bank accounts. He later learned the IRS would consider
Enelre a “foreign trust,” triggering certain reporting requirements. Rebold
belatedly filed the reports, and the IRS assessed penalties. Rebold paid the
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penalties and then filed this refund action. The district court granted
summary judgment for the government. We affirm.
I.
A.
The Internal Revenue Code (IRC) requires disclosures regarding
foreign trusts. See I.R.C. § 6048. Under section 6048(a), a “United States
person” must report “the creation of any foreign trust” and “the transfer of
any money or property (directly or indirectly) to a foreign trust.” Id.
§ 6048(a)(1), (3)(A)(i)–(ii). A “United States person” includes U.S. citizens
and residents. Id. § 7701(a)(30)(A). These reportable events are disclosed to
the IRS on Form 3520. 1 Failure to timely file the form or to fully disclose all
required information results in a “penalty equal to the greater of $10,000 or
35 percent of the gross reportable amount.” Id. § 6677(a). The “gross
reportable amount” is “the gross value of the property involved in the event
(determined as of the date of the event).” Id. § 6677(c).
Under section 6048(b), as in effect during the years relevant to this
case, anyone treated as the owner of a foreign trust under the grantor trust
rules of I.R.C. §§ 671–679 must “ensure” the trust annually “makes a
return . . . which sets forth a full and complete accounting of all trust
activities and operations for the year, the name of the United States agent for
such trust, and such other information as the Secretary may prescribe.” Id.
1
See Treas. Reg. § 16.3-1(a) (2018), removed by Eliminating Unnecessary Tax
Regulations, 84 Fed. Reg. 9231-01, 9238 (Mar. 14, 2019); see also Form 3520, Annual
Return To Report Transactions With Foreign Trusts and Receipt of Certain Foreign Gifts,
Dep’t Treas. & IRS (2021), https://www.irs.gov/pub/irs-pdf/f3520.pdf.
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§ 6048(b)(1)(A) (2009). 2 The return is made on Form 3520-A. 3 Failure to
timely file the form or to fully disclose all required information results in “a
penalty equal to the greater of $10,000 or [5] percent of the gross reportable
amount.” Id. § 6677(a)–(b). The “gross reportable amount” is “the gross
value of the portion of the trust’s assets at the close of the year treated as
owned by the United States person.” Id. § 6677(c)(2).
B.
Rebold was a U.S. citizen who worked overseas as an engineer in the
oil and gas industry. In 2005, he traveled to Switzerland and created the
Enelre Foundation as a Stiftung 4 under the laws of Liechtenstein. At the time
2
In 2010, Congress amended section 6048(b) to require that a foreign trust owner
not only “ensure” the trust makes an annual return but also directly “submit” a return
“with respect to such trust for such year.” I.R.C. § 6048(b)(1) (2010).
3
See Treas. Reg. § 404.6048-1(a) (2017), removed by Eliminating Unnecessary Tax
Regulations, 84 Fed. Reg. at 9239; see also Form 3520-A, Annual Information Return of
Foreign Trust With a U.S. Owner, Dep’t Treas. & IRS (2021),
https://www.irs.gov/pub/irs-pdf/f3520a.pdf.
4
Stiftung is translated from German to English as “foundation,” “establishment,”
“donation,” or “endowment.” German-English Translation for “Stiftung,”
Langenscheidt, https://en.langenscheidt.com/german-english/stiftung (last visited
Aug. 2, 2022); Stiftung: German to English, Collins,
https://www.collinsdictionary.com/us/dictionary/german-english/stiftung (last visited
Aug. 2, 2022). The plural form of Stiftung is “Stiftungen.” Stiftung v. Plains Mktg., L.P.,
603 F.3d 295, 299 n.1 (5th Cir. 2010).
“A stiftung is a creation of the laws of Liechtenstein . . . , resembling a trust, but
not limited to specific lives in being. A stiftung can own property and is controlled by an
administrator (known as a stiftungerat) whose powers and duties are comparable to a
trustee.” Kraus v. Comm’r, 59 T.C. 681, 685 (1973). “A Stiftung does not have members
or a board of directors.” I.R.S. Chief Couns. Att’y Mem. AM2009-012, 2009 WL 3336014
(Oct. 7, 2009). In forming a Stiftung, the founder “transfers specific assets to the Stiftung
that are then endowed for specific purposes,” “states the objectives of the Stiftung[,] and
appoints its [stiftungerat].” Ibid. A Stiftung “can be created for charitable or personal
purposes” but “cannot be created to undertake commercial activities.” Von E. Sanborn et
al., Classifying Trusts, Anstalts, and Stiftungs—When Is a Trust Not a Trust?, A.L.I.-
3
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of Enelre’s founding, Rebold was the settlor and primary beneficiary, and his
children were secondary beneficiaries. “Enelre” is the name of Rebold’s
wife, Erlene, spelled backwards.
Enelre’s organizing documents provide that its purpose is to provide
education, training, support, and maintenance for its beneficiaries. The
documents prohibit “commercial trade” and do not provide for allocation of
profits. They refer to Enelre as a trust, and Enelre has trustees and pays
trustee fees. Liechtensteinian Public Registry filings reiterate Enelre’s
purpose and prohibition of commercial business.
Rebold opened bank accounts for Enelre at Credit Suisse, UBS, and
Bank Wegelin. He transferred $2 million to Enelre in 2005 and another $1
million in 2007. Neither Rebold nor Enelre filed Form 3520 or 3520-A
disclosing to the IRS the creation of Enelre or these transfers.
In 2010, UBS notified Rebold that it intended to turn over Enelre’s
account records to the IRS. Rebold consulted counsel regarding tax liability
for Enelre. An attorney for “the trust and trustees” (i.e., Enelre and its
trustees) advised Rebold’s counsel that Rebold was “an American who set
up a foreign trust, so [h]e will need to do 3520’s and 3520-A’s as well as
amended US returns,” and recommended that he participate in a voluntary
disclosure program “to limit his exposure to penalties.” That attorney noted
that Rebold “will owe some serious tax! Nothing to be taken lightly.”
Rebold’s counsel explained that he was “trying to find a way to treat the
A.B.A. Course of Study, SL003 ALI-ABA 293, 300 (July 2005). “Liechtenstein law
provides that in certain cases commercial activities may be undertaken by a Stiftung if such
activities serve its noncommercial purposes.” AM2009-012, 2009 WL 3336014. Once
formed, the Stiftung “is entered onto the Register in Liechtenstein and must have a
minimum amount of initial capital.” Ibid. The Stiftung “exists for the benefit of those
named in its formation documents as being appointed as beneficiaries.” Ibid.
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Enelre Foundation as something other than a trust for US tax purposes,”
which was “not easy.”
In 2013, Daphne Jeanette Rost, Rebold’s daughter and power of
attorney, filed a Form 3520 for 2005 on Rebold’s behalf, reporting that he
owned a portion of Enelre and had transferred money to it. Rost also filed
Forms 3520-A for the years 2005, 2006, and 2007, reporting year-end
balances of $1,680,272, $1,807,873, and $3,116,898, respectively.
In 2014, the IRS assessed $1,380,252.35 in penalties against Rebold
under section 6677(a) and (b) for his failure to timely file Forms 3520 and to
ensure that Enelre timely filed Forms 3520-A in 2005, 2006, and 2007. The
IRS soon notified Rebold of its intent to levy the penalties. Rebold contested
his liability and requested collection due process hearings. The IRS Appeals
Office sustained the levy notices but cut the penalties in half. In June 2017,
Rebold paid the penalties, as adjusted. In August 2018, he filed administrative
refund claims with the IRS.
C.
In June 2019, having not received a decision from the IRS, Rebold filed
this action, seeking refunds for the penalties. Upon Rebold’s death in
December 2019, Rost, his executor, substituted as plaintiff.
After discovery, the parties cross-moved for summary judgment on
Rebold’s liability. The government argued that federal tax law determines
the classification of an entity as a trust for tax purposes and that, under a
facts-and-circumstances test, Enelre qualified as a foreign trust. Rost argued
that because no statute, regulation, or judicial decision provides that a
Liechtensteinian Stiftung is a foreign trust for federal tax purposes, the
penalties violated the government’s “duty of clarity when imposing
sanctions,” the Administrative Procedure Act (APA), and the Due Process
Cause.
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The court granted the government’s motion and denied Rost’s. Rost
v. United States, No. 1:19-CV-0607-RP, 2021 WL 5190875 (W.D. Tex. Sept.
22, 2021). Applying a facts-and-circumstances test, the court held that Enelre
qualified as a foreign trust based on its purpose and form, as stated in its
organizing documents, and because it failed the tests for domestic trusts set
forth in Treasury regulations. Id. at *4. The court found that Rost submitted
no evidence “demonstrating fact issues that would prevent [it] from
determining that [Enelre] is a ‘foreign trust’ as a matter of law.” Ibid. The
court rejected Rost’s notice arguments, finding the statutory and regulatory
frameworks were “sufficiently clear.” Id. at *5, *7–9. Rost timely appealed.
II.
We review a summary judgment de novo. United States v. Bittner, 19
F.4th 734, 740 (5th Cir. 2021) (citation omitted), cert. granted, 142 S. Ct. 2833
(2022). Summary judgment is appropriate “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Once the movant satisfies this burden,
the nonmovant “must present competent summary judgment evidence of
the existence of a genuine [dispute] of fact.” Johnson v. World All. Fin. Corp.,
830 F.3d 192, 195 (5th Cir. 2016) (citations omitted). “We view the evidence
in the light most favorable to the nonmovant and draw all reasonable
inferences in its favor.” Bittner, 19 F.4th at 740 (citation omitted).
In a tax refund action, “the taxpayer bears the burden of proving both
the error in the assessment and the amount of refund to which he is entitled.”
Brown v. United States, 890 F.2d 1329, 1334 (5th Cir. 1989) (citations
omitted); see also Trinity Indus., Inc. v. United States, 757 F.3d 400, 413 (5th
Cir. 2014).
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III.
At bottom, Rost argues that Rebold had insufficient notice that Enelre
qualifies as a foreign trust for federal tax purposes. She contests the facts-
and-circumstances test employed by the district court. She claims that
applicable statutes, regulations, and case law do not clearly “connect[] the
imposition of penalties for failure to file foreign trust information returns with
respect to a Liechtenstein Stiftung.” She then argues the penalties violate the
APA, the government’s “duty of clarity,” and due process.
We disagree with each contention. We first outline the legal
framework for classifying an arrangement as a foreign trust, then explain why
Enelre qualifies as one, and then address Rost’s notice arguments.
A.
The classification of an organization “for federal tax purposes is a
matter of federal tax law and does not depend on whether the organization is
recognized as an entity under local law.” Treas. Reg. § 301.7701-1(a).
Sections 301.7701–2, 301.7701–3, and 301.7701–4 determine the
classification of organizations recognized as separate entities, unless the IRC
“provides for special treatment of that organization.” Id. § 301.7701-1(b).
Neither the IRC nor its regulations specifically classify or provide for special
treatment of Stiftungen. Cf. id. § 301.7701-2(b)(8) (classifying Liechtenstein
Aktiengesellschaften as corporations).
Determining whether an arrangement is a foreign trust requires a two-
step inquiry: (1) whether it is a trust under section 301.7701-4 or a business
entity under sections 301.7701-2 or 301.7701-3, and (2) if it is a trust, whether
it is a United States person (i.e., a domestic trust) or a foreign trust. See I.R.C.
§ 7701(a)(30)(E), (31)(B); Treas. Reg. §§ 301.7701-1(a)–(b), (d), 301.7701-
2(a), 301.7701-4(a), 301.7701-5(a), 301.7701-7.
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A “trust” in the IRC is an arrangement where “trustees take title to
property for the purpose of protecting or conserving it for the beneficiaries.”
Treas. Reg. § 301.7701-4(a). An arrangement generally qualifies as a trust if
“the purpose of the arrangement is to vest in trustees responsibility for the
protection and conservation of property for beneficiaries who cannot share in
the discharge of this responsibility and, therefore, are not associates in a joint
enterprise for the conduct of business for profit.” Ibid.; see also Frank Aragona
Tr. v. Comm’r, 142 T.C. 165, 175 (2014).
An arrangement’s purpose thus distinguishes a trust from other
entities. “[A]ny entity recognized for federal tax purposes . . . that is not
properly classified as a trust under § 301.7701–4” is a “business entity.”
Treas. Reg. § 301.7701-2(a). Arrangements “known as trusts because the
legal title to property is conveyed to trustees for the benefit of beneficiaries”
may nevertheless not qualify as trusts under the IRC “because they are not
simply arrangements to protect or conserve the property for the
beneficiaries.” Id. § 301.7701-4(b). “Business trusts,” for example,
“generally are created by the beneficiaries simply as a device to carry on a
profit-making business which normally would have been carried on through
business organizations that are classified as corporations or partnerships
under the [IRC].” Ibid.; see Petersen v. Comm’r, 148 T.C. 463, 475 n.8 (2017).
In classifying an arrangement as a trust or other business entity for tax
purposes, “there is no one rule or set formula,” and “[e]ach case must be
decided upon its own particular facts.” Keating-Snyder Tr. v. Comm’r, 126
F.2d 860, 862 (5th Cir. 1942); see also Comm’r v. Horseshoe Lease Syndicate,
110 F.2d 748, 749 (5th Cir. 1940) (“the facts of each case[] must control”).
The seminal case is Morrissey v. Commissioner, 296 U.S. 344 (1935). There,
the Supreme Court held that a trust created for developing tracts of land and
constructing and operating a golf course was properly classified and taxed as
“an association” (i.e., a business trust), rather than an ordinary trust, based
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on its “character” and “salient features,” including the trustees’ “use and
adaptation of the trust mechanism.” Id. at 359–61. The Court applied
Morrissey’s fact-specific approach in three companion cases decided that
same day. See Swanson v. Comm’r, 296 U.S. 362 (1935); Helvering v. Coleman-
Gilbert Assocs., 296 U.S. 369 (1935); Helvering v. Combs, 296 U.S. 365 (1935).
An arrangement’s most relevant features for tax-classification
purposes are its “nature,” “purpose,” and “operations.” Morrissey, 296
U.S. at 357; Swanson, 296 U.S. at 365. 5 The form of organization under which
the arrangement operates “may furnish persuasive evidence” of a
classification but “cannot be regarded as decisive.” Morrissey, 296 U.S. at
358. No feature is dispositive; they “all go to the point of whether the trust is
being used to achieve the organizational conveniences of the corporate
form.” Guar. Emps. Ass’n v. United States, 241 F.2d 565, 571 (5th Cir. 1957).
In assessing these features, the arrangement’s organizing documents
are determinative. See Swanson, 296 U.S. at 363–65; Morrissey, 296 U.S. at
360–61. As the Supreme Court has explained, “parties are not at liberty to
say that their purpose was other or narrower than that which they formally
set forth in the instrument under which their activities were conducted.”
Coleman-Gilbert, 296 U.S. at 374. 6
5
Morrissey relied on five corporate features to conclude the trust was “analogous
to a corporate organization” and thus qualified as an “association,” or “business trust.”
296 U.S. at 359–61. These features are “(1) title to the property held by the entity,
(2) centralized management, (3) continuity uninterrupted by deaths among the beneficial
owners, (4) transfer of interest without affecting the continuity of the enterprise, and
(5) limitation of the personal liability of participants.” Comm’r v. Rector & Davidson, 111
F.2d 332, 333 (5th Cir. 1940); see Kurzner v. Comm’r, 413 F.2d 97, 101–04 & n.22 (5th Cir.
1969) (reviewing Morrissey’s discussion of “distinguishing attributes of ‘corporateness’”).
6
See also Abraham v. United States, 406 F.2d 1259, 1262–63, 1263 n.4 (6th Cir.
1969) (finding “broad powers . . . for conducting a business for profit . . . carefully spelled
out” in the trust instrument could not “be negated by [a] self-serving limiting declaration
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Once an entity is deemed a trust, it must be classified as foreign or
domestic. A foreign trust is “any trust other than a trust” that is a “United
States person” (i.e., a domestic trust). I.R.C. § 7701(a)(30)(E), (31)(B);
Treas. Reg. § 301.7701-7(a)(2). A trust is domestic if (1) “a court within the
United States is able to exercise primary supervision over the administration
of the trust” (the “court test”) and (2) “one or more United States persons
have the authority to control all substantial decisions of the trust” (the
“control test”). I.R.C. § 7701(a)(30)(E); Treas. Reg. § 301.7701-7(a)(1).
A trust satisfies the court test if the governing document “does not
direct that the trust be administered outside of the United States,” “[t]he
trust in fact is administered exclusively in the United States,” and “[t]he
trust is not subject to an automatic migration provision” that would move it
outside the U.S. if a U.S. court were to “attempt to assert jurisdiction” over
it. Treas. Reg. § 301.7701-7(c)(1), (4)(ii). As to the control test, “control
means having the power, by vote or otherwise, to make all of the substantial
decisions of the trust, with no other person having the power to veto [them].”
Id. § 301.7701-7(d)(1)(iii). This includes anyone with authority over
substantial decisions, not only trust fiduciaries. Ibid. Substantial decisions are
those “authorized or required” under the trust instrument and applicable
law “that are not ministerial.” Id. § 301.7701-7(d)(1)(ii) (providing
examples).
contained in the last paragraph” that the trust “shall not be deemed or considered a trust
operated for financial profit”); Nee v. Main St. Bank, 174 F.2d 425, 429 (8th Cir. 1949)
(“The intention, through the creation of a trust, to conduct a business enterprise may
accordingly legally be inferred . . . from the enumeration in the instrument of powers
which, if exercised, would necessarily cause such an enterprise to result.”); Sears v. Hassett,
111 F.2d 961, 962–63 (1st Cir. 1940) (noting the “character of the trust” is determined by
“the purposes and potential activities as disclosed on the face of the trust instrument”).
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B.
The district court correctly found that Enelre qualifies as a foreign
trust. Its organizing documents explain that Enelre’s purpose is to support
its beneficiaries and limit its transactions to “pursuing and realising its
purpose.” This is “characteristic of an ordinary trust.” Morrissey, 296 U.S.
at 356–57. The documents also prohibit Enelre from conducting commercial
trade. Liechtensteinian Public Registry filings confirm this prohibition.
Enelre’s familial purpose, lack of business objective, and bar on commercial
activity render it a trust. See McKean v. Scofield, 108 F.2d 764, 765–66 (5th
Cir. 1940) (holding a trust was taxable as a trust and not an association
because “[s]olicitude for the future of [the settlor’s] family [wa]s a main
purpose of the trust”); see also Estate of Bedell v. Comm’r, 86 T.C. 1207, 1221
(1986) (holding a “trust characterized by a dominant familial objective” was
taxable as a trust and not an association because it lacked a business
purpose). 7
Enelre’s form of organization confirms it is a trust. Enelre is subject
to Liechtenstein’s “Act on Trust Enterprises.” Its board members serve the
same function as independent trustees, and Enelre’s counsel considered
them trustees. Enelre also has beneficiaries like an ordinary trust. Rebold
described himself as “Settlor and Beneficiary” of Enelre, and he transferred
money to Enelre the same way a trust grantor would. Rebold’s children, the
other beneficiaries, were not involved with Enelre and did not know it existed
during the years in question, so they could not have been “associates”
7
Cf. Coleman-Gilbert, 296 U.S. at 373–74 (holding trust was taxable as an
association because the parties engaged “in carrying on an extensive business for profit”);
Adkins Props. v. Comm’r, 143 F.2d 380, 381 (5th Cir. 1944) (holding trust with “an active
business purpose, having the general characteristics and advantages of corporate
organization” was taxable as an association); cases cited supra note 6.
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engaged in a common business enterprise. See Morrissey, 296 U.S. at 357; cf.
Elm St. Realty Tr. v. Comm’r, 76 T.C. 803, 813–18 (1981). And Enelre’s
organizing documents do not provide for profit sharing. See Morrissey, 296
U.S. at 357.
Enelre is not a domestic trust. It fails the court test because any
disputes must proceed to arbitration under Liechtensteinian law, with “the
President of the Princely Liechtenstein Court of Appeal” assisting in
appointing an arbitrator. See I.R.C. § 7701(a)(30)(E)(i); Treas. Reg.
§ 301.7701-7(a)(1)(i), (c)(1). And it fails the control test because Rebold, as
settlor, “waive[d] any influence on [Enelre] and on any other rights
whatsoever towards [Enelre], [its] board, and the beneficiaries,” and
Enelre’s board has decision-making authority. See I.R.C.
§ 7701(a)(30)(E)(ii); Treas. Reg. § 301.7701-7(a)(1)(ii), (d)(1)(i)–(iii).
Failing both tests, Enelre is not a domestic trust and so qualifies as a foreign
trust. See I.R.C. § 7701(a)(30)(E), (31)(B); Treas. Reg. § 301.7701-7(a)(1)–
(2); see also Kaplan v. Comm’r, 107 T.C.M. (CCH) 1226, 2014 WL 988465,
at *7 (Mar. 13, 2014) (holding trusts “organized under the laws of the Isle of
Jersey and supervised by the Royal Court of Jersey[] are foreign trusts”).
Rost argues that because the IRC and its regulations do not specifically
classify Liechtensteinian Stiftungen as trusts, they could be corporations,
partnerships, or other entities. They very well could, under certain facts and
circumstances. But Rost presents no evidence that Enelre should be classified
as anything other than a trust. See, e.g., Jones v. United States, 936 F.3d 318,
321 (5th Cir. 2019) (“A non-movant will not avoid summary judgment by
presenting ‘speculation, improbable inferences, or unsubstantiated
assertions.’” (citation omitted)).
Rost also claims that courts have treated a Stiftung as a corporation
under the IRC, citing Oak Commercial Corp. v. Commissioner, 9 T.C. 947
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(1947), aff’d sub nom. Aramo-Stiftung v. Commissioner, 172 F.2d 896 (2d Cir.
1949). But there, neither the Tax Court nor the Second Circuit evaluated
whether the Stiftungen were properly characterized as foreign corporations.
The Tax Court merely accepted the IRS’s position that the Stiftungen were
corporations because the taxpayer failed to challenge the classification. See
Oak Commercial, 9 T.C. at 954–55. Accordingly, the treatment of the
Stiftungen there is unhelpful. See Estate of Swan v. Comm’r, 247 F.2d 144, 147
n.3 (2d Cir. 1957); Estate of Swan v. Comm’r, 24 T.C. 829, 860 (1955).
C.
Rost’s notice arguments are without merit. Rost first claims the
penalties violate the APA because the government relied on an unwritten
“rule” promulgated without notice and comment that Stiftungen are foreign
trusts for tax purposes. But the government applied no “rule.” See 5 U.S.C.
§ 551(4) (defining “rule”). As the district court explained, “Rost’s argument
is based on the faulty premise that the IRS established a ‘rule’ that a Stiftung
always qualifies as a ‘foreign trust.’” Rost, 2021 WL 5190875, at *8. The IRS
has consistently recognized that each Stiftung must be analyzed on its own
facts and circumstances. See, e.g., I.R.S. Chief Couns. Att’y Mem. AM2009-
012, 2009 WL 3336014 (Oct. 7, 2009). Rost does not challenge the validity of
the regulations under which Enelre qualifies as a foreign trust. See Treas. Reg.
§§ 301.7701-4, 301.7701-7.
Rost next argues the penalties “violate[] the duty of clarity for tax
laws,” citing Central Illinois Public Service Co. v. United States, 435 U.S. 21
(1978). She claims the penalties cannot be imposed “without a clear
description of the prohibited circumstances, facts, or status.” This
argument, too, is based on the false “presumption that the IRS automatically
considers a Stiftung to be a foreign trust for tax and penalty purposes.” Rost,
2021 WL 5190875, at *8.
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Rost claims there is “no indication which foreign entities” the
government “might deem to be a foreign trust.” But the IRS is not obligated
to promulgate a regulation listing all foreign entities that are or may be
classified as a foreign trust. As Morrissey acknowledged, “it is impossible in
the nature of things to translate the statutory concept of ‘association’ into a
particularity of detail that would fix the status of every sort of enterprise or
organization which ingenuity may create.” 296 U.S. at 356. So too for trusts.
In any event, Central Illinois is inapposite. There, the Court held an
employer could not be penalized for failing to withhold income taxes on
reimbursements of meal expenses for employees day-traveling on business
because it was unclear at the time that the meals constituted wages subject to
withholding. 435 U.S. at 29, 33. Rost identifies no decision applying this logic
outside third-party withholding contexts. Cf. id. at 31 (“Because the
employer is in a secondary position as to liability for any tax of the employee,
it is a matter of obvious concern that . . . the employer’s obligation to
withhold be precise and not speculative.”). 8 But even if it applied here, the
legal framework set forth above is sufficiently precise.
Finally, Rost argues that the penalties violate due process because
there is no “clear, written rule of law” that Stiftungen qualify as foreign
trusts. As shown above, the IRC, regulations, and case law provide ample
notice that the classification of an arrangement as a trust, and whether it is
8
This defense has been dubbed the “‘deputy tax collector’
defense, . . . protect[ing] an employer from liability for failing to withhold employment
taxes from its employees when the employer lacks ‘precise and not speculative’ notice of
its duty to withhold.” N.D. State Univ. v. United States, 255 F.3d 599, 608 (8th Cir. 2001)
(quoting Cent. Ill., 435 U.S. at 31); see also Univ. of Chi. v. United States, 547 F.3d 773, 784
(7th Cir. 2008); Gen. Elevator Corp. v. United States, 20 Cl. Ct. 345, 354 (1990).
14
Case: 21-51064 Document: 00516428682 Page: 15 Date Filed: 08/11/2022
No. 21-51064
foreign or domestic, are case-specific inquiries based on the facts and
circumstances. 9
IV.
The district court’s judgment is AFFIRMED.
9
Rost also claims there was no statutory authority to penalize Rebold for failing to
file Form 3520-A before the 2010 amendment to section 6677. We decline to consider this
argument because Rost did not raise it below. See, e.g., Rollins v. Home Depot USA, 8 F.4th
393, 397–99 (5th Cir. 2021); Doe v. MySpace, Inc., 528 F.3d 413, 422 (5th Cir. 2008).
15