UNITED STATES TAX COURT

Sob- LoAo

T.C. Memo. 2014-208

UNITED STATES TAX COURT

RICHARD H. CULLIFER, TRANSFEREE, Petitioner y.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 20177-11.

Filed October 7, 2014.

R issued a notice of transferee liability to P to collect N's

unpaid Federal income tax pursuant to I.R.C. sec. 6901. R argues that

under Texas State law: (1) P has transferee liability with respect to a

special dividend that N distributed to P and (2) P has transferee-oftransferee liability with respect to P's proceeds from his sale of N

stock.

Held: P is a transferee under Federal law principles pursuant to

I.R.C. sec. 6901.

Held, further, under Texas State law, P has transferee liability

with respect to the special dividend.

Held, further, under Texas State law, P has transferee-oftransferee liability with respect to the proceeds from the sale of N

stock.

SERVED OCT - 7 2014

-2[*2] William O. Grimsinger, Renesha N. Fountain, and Rita Renee Huey, for

petitioner.

Robert M. Morrison, Joseph A. Peters, Candace M. Williams, Katelynn M.

Winkler, Courtney M. Hill, and Julie Ann P. Gasper, for respondent.

MEMORANDUM OPINION'

LARO, Judge: In a notice of liability, respondent determined that petitioner

is liable for $9,030,205 plus interest as a transferee of the assets of Neches

Industrial Park, Inc. (Neches or sometimes NIP). The underlying tax liabilities

involved in this case are Neches' Federal income tax deficiencies and penalties for

the taxable years ending September 30, 2003 and 2004 (years at issue). Petitioner

resided in Florida when he filed his petition.

¹This case was tried before Judge Diane L. Kroupa in September 2013. On

June 16, 2014, Judge Kroupa retired from the Tax Court. On June 18, 2014, the

Court issued an order informing the parties of Judge Kroupa's retirement and

proposing to reassign this case to another judicial officer of the Court for purposes

of preparing the opinion and entering a decision based on the record of trial or,

alternatively, allowing the parties to request a new trial. On July 17, 2014, both

parties filed a response consenting to the reassignment of this case. On July 23,

2014, the Court issued an order assigning this case to Judge David Laro.

-3[*3] The primary issue in this case is whether petitioner is liable for Neches' tax

liabilities for the years at issue as a transferee pursuant to section 6901.2 For the

reasons stated herein, we hold that he is.

Background3

I.

Richard H. Cullifer

Petitioner attended Florida State University for college and graduated with a

degree in finance. After graduation petitioner worked at several banks, including

in C&S Bank's commercial banking program. While at C&S Bank, petitioner

became acquainted with Henry Weitzman, whose business partner was a C&S

Bank customer. Mr. Weitzman taught petitioner "the ropes" on real estate

development. At some point, petitioner decided to leave the commercial banking

business and to go into real estate development. Petitioner stayed in the real estate

business and is currently a commercial real estate developer and operator.

2Unless otherwise indicated, section references are to the Internal Revenue

Code in effect for the years at issue, and Rule references are to the Tax Court

Rules of Practice and Procedure.

3Because of the reassignment of this case for purposes of preparing the

opinion and entering the decision, we did not have an opportunity to observe the

demeanor of witnesses. We therefore make no inferences of credibility except

those which may be judged from the written record.

-4[*4] II.

Neches

In 1992 Mr. Weitzman told petitioner about a business opportunity

involving Cantex Chemicals, Inc. (Cantex), a company created to hold a chemical

storage site that he and two partners had purchased in 1988. The site was in

Beaumont, Texas, and included a port facility. Petitioner visited the site but

decided not to pursue that opportunity because of personality conflicts with one of

Mr. Weitzman's business partners (Texas partner).

In 1993 following the death of the Texas partner, Mr. Weitzman contacted

petitioner regarding Cantex. Petitioner visited Cantex, but this time he was given

a tour by William (Bill) Castleman, the on-site manager. After inspecting the

docks, petitioner realized that Cantex was a unique facility that had potential. At

around this time Ken Tummel, executive vice president of Continental Nitrogen

Resources (CNR), alerted petitioner to opportunities in the ammonia storage and

import business. On the basis of his research into the ammonia business petitioner

learned that America's demand for ammonia exceeded its supply. In addition,

most American ammonia plants were built in the 1960s, energy inefficient, and

located inland. Petitioner therefore concluded that there was an unmet market

demand for coastal ammonia import and storage facilities.

-5[*5] In 1994 Mr. Weitzman bought out his partners' interests in Cantex. Around

that time petitioner became an officer and director of Cantex. The Cantex

property was, as petitioner described, "absolutely a disaster". Originally a

fertilizer plant built in the late 1960s by the Mobil Chemical Agricultural Division,

Cantex was full of asbestos and had concrete retainage ponds full of old

chemicals, and its fertilizer production, bagging, and warehouse facilities had not

been in use for decades. Petitioner hired an environmental remediation firm to

clean up the entire site and disposed of everything on site with the exception of the

warehouses, a 10,000-ton ammonia tank built by Chicago Bridge & Iron, pipe

racks, rail tracks, a wooden dock, and an office building. Petitioner also built a

new dock. Finally, petitioner purchased from Exxon an anhydrous ammonia

storage facility with a 35,000-ton ammonia tank in Great Falls, Montana.

Petitioner hired an engineering firm to dismantle the Exxon facility and

reconstruct it on the Cantex site. Following petitioner's rehabilitation plans, the

Cantex site's final storage capacity was approximately 45,000 tons.

Petitioner did not like the name Cantex and renamed the company Neches

Industrial Park, Inc., after the Neches River on which it was located. Petitioner

was Neches' sole officer and director, and in 1996 he became a 50% shareholder

as well. The other 50% shareholder was Furtivus, Inc., a Canadian corporation

-6[*6] owned by the Weitzman family. Robert Thomas4 served as Neches'

longstanding attorney, and accounting firm Funchess, Mills & White (Funchess)

served as Neches' accountant. Funchess prepared Neches' quarterly and annual

financial statements, employment tax returns, Federal and State income tax

returns, and State franchise tax returns.

Although Neches initially offered only ammonia storage services, over time,

it provided sulfur, glycol, and liquid asphalt storage services as well. By 2000

petitioner had grown Neches into a business with monthly revenue of $300,000 to

$400,000. Neches' tenants included DuPont, A&A Fertilizer, Ltd., CNR,

ChemCycle, Inc., and Martin Gas Sales, Inc. (Martin).

Petitioner worked at Neches full time until approximately 1998, returning to

Florida every weekend to be with his family. In 1998 petitioner hired more

employees to handle the day-to-day operations of Neches and transitioned to a

business development role. Since petitioner's business development work could

be performed remotely, petitioner began working increasingly from his office in

Jupiter, Florida. The office building was owned by Rich International, an S

corporation wholly owned by petitioner. Starting around 1996 Rich International

4Mr. Thomas is certified by the Texas Board of Legal Specialization in

estate planning, probate law, and tax law. Over the past 25 years, Mr. Thomas has

represented clients in over 100 corporate purchase and sale transactions.

-7[*7] began sending Neches monthly invoices for petitioner's "management fees".

These management fees included petitioner's travel and office expenses5 and were

not subject to a written management agreement between Neches and Rich

International.

Starting in 2000 petitioner became interested in selling Neches. Between

2000 and 2003, petitioner engaged in discussions with several companies--e.g.,

Duke Energy, Buckeye Pipeline, Kinder Morgan Liquid Terminals, LLC (Kinder

Morgan), and Kaneb Pipe Line Partners L.P.--regarding the possible sale of

Neches.

III.

MidCoast Investments, Inc.

In June 2003 Jim Lelio, an executive at Kinder Morgan, introduced

petitioner to Graham (Paul) Wellington of MidCoast Investments, Inc.

sDuring this time petitioner was also engaged in the development and

operation of a restaurant chain called Quarterdeck. Petitioner focused on real

estate acquisition and development for the restaurants, while his partner, Paul

Flanigan, handled the restaurants' day-to-day operations. Because petitioner

performed work for both Neches and the Quarterdeck restaurants out of his Florida

office, petitioner charged half of the office expenses to Neches and the other half

to Buffalo Holdings, Inc. (Buffalo Holdings), a C corporation petitioner created to

invest in his restaurant business. These office expenses included salary and health

benefits for petitioner's secretary, as well as Rich International's loan payments on

the office building.

-8[*8] (MidCoast).6 MidCoast was looking for companies that fit a certain

"acquisition profile"--i.e., C corporations that had recently experienced large

taxable gain. Mr. Wellington explained to petitioner that buyers prefer to buy

assets for a step-up in basis and that sellers prefer to sell stock, thus triggering

only a single level of taxation. Mr. Wellington further explained that MidCoast

could help buyers and sellers achieve the best of both worlds by buying a company

shortly before or after its sale of assets. MidCoast would in turn employ highbasis, low-market-value assets--e.g., charged-offreceivables--to offset the taxable

gain from the asset sale in their "asset recovery business". In addition, MidCoast

would pay sellers a premium calculated on the size of the taxable gain. On July

23, 2003, Mr. Wellington sent petitioner a letter stating:

It was a pleasure speaking with you regarding MidCoast Investments'

acquisition criteria. As discussed, MidCoast in [sic] interested in

purchasing the stock of certain C-corporations. In instances where a

C-corporation has sold its assets, MidCoast may have an interest in

purchasing 100% of the stock for a price significantly higher than the

shareholders might otherwise realize. MidCoast pursues these

acquisitions as an effective way to grow our parent company's asset

recovery operations. It is important to note that after MidCoast

completes its stock acquisition, the target company is not dissolved or

6We observe that MidCoast has been involved in a number of transactions in

cases that have come before us. See, e.g. Hawk v. Commissioner, T.C. Memo.

2012-259; Feldman v. Commissioner, T.C. Memo. 2011-297; Starnes v.

Commissioner, T.C. Memo. 2011-63, aff'd, 680 F.3d 417 (4th Cir. 2012); Griffin

v. Commissioner, T.C. Memo. 2011-61.

-9_

[*9] consolidated, but re-engineered into the asset recovery business

and ultimately becomes an income producer for MidCoast.

Enclosed was a MidCoast promotional brochure, which described its history,7 its

target corporation profile, and the benefits that it provides.

Between August 2003 and May 2004 petitioner and Mr. Wellington kept in

routine contact. Petitioner kept Mr. Wellington informed about his efforts to sell

Neches and even spoke highly of Mr. Wellington and MidCoast to potential

buyers Martin Midstream Partners, L.P. and Kaneb Pipe Line Partners, L.P. In

January 2004 petitioner told Mr. Wellington that a closing in 2004 "looks good".

In June or July 2004 Mr. Wellington and Donald Stevenson, director of

corporate acquisitions of MidCoast Financial, Inc. (also MidCoast),8 met with

7According to the promotional brochure, MidCoast Credit Corp. was

founded in 1958 as a network of mortgage banking branches throughout the

northeastern United States. In 1996 MidCoast Credit Corp. shifted its focus to the

asset recovery business and became a buyer of "charged-off debt portfolios from

major banking institutions". In 1997 MidCoast Credit Corp. formed MidCoast

Investments, Inc., to "identify and acquire corporations suitable for conversion

into the asset recovery business".

8In May 2004 MidCoast Investments, Inc., sold all of its assets to MidCoast

Financial, Inc. We refer to both entities as MidCoast. References to MidCoast for

dates before May 2004 shall be to MidCoast Investments, Inc. References to

MidCoast for dates after May 2004 shall be to MidCoast Financial, Inc.

- 10 [*10] petitioner in Jupiter, Florida.9 During this meeting petitioner inquired about

transferee liability. Mr. Stevenson explained that as long as the corporation held

enough assets to discharge its liabilities, no transferee liability would exist.

IV.

Morgan Joseph & Co., Inc.

Meanwhile, in July 2003 petitioner attended a Merrill Lynch seminar

regarding investment banking for small businesses. At the seminar, petitioner met

an investment banker at Merrill Lynch named John Stuart, who later introduced

him to Omar Abboud, a managing director at the investment banking firm of

Morgan Joseph & Co., Inc. (Morgan Joseph), who specialized in the chemical

industry.

In August 2003 petitioner spoke with Mr. Abboud about Neches' history, its

current financial state, its plans for future development and growth, and his desire

to sell Neches. Mr. Abboud was impressed by petitioner's success in developing

Neches and believed that a number of companies would consider Neches an

attractive acquisition target. Petitioner told Mr. Abboud and his associate, Kelly

Walters, that many of Neches' potential acquirers were master limited partnerships

(MLP), which could not purchase Neches stock. Petitioner further explained that

9Although Mr. Wellington had previously resigned from MidCoast

Investments, Inc., during the sale to MidCoast Financial, Inc., he attended the

meeting with petitioner at Mr. Stevenson's request.

- 11 [*11] because of the low inside basis of Neches' assets, an asset sale would not be

tax efficient.'° Following their conversation, Mr. Abboud and Mr. Walters began

researching "potential creative structure(s) that could mitigate or circumvent"

petitioner's conundrum.

On September 11, 2003, Mr. Abboud and Mr. Walters held a conference call

with petitioner to discuss a PowerPoint presentation prepared by the Morgan

Joseph team. The PowerPoint presentation covered Neches' valuation, potential

buyers and their acquisition criteria, an efficient transaction structuring alternative,

and the team's recommendations. On a slide titled "Structuring Considerations",

the Morgan Joseph team explained why stock transactions were preferred by

sellers, why asset transactions were preferred by buyers, and how to use an NOL

intermediary as a "Tax-Efficient Alternative". According to Morgan Joseph, the

use of an NOL intermediary was an "[i]nnovative structure [which] maximizes

cash to seller while eliminating need for additional investment by buyer in order to

achieve passthrough status." The Morgan Joseph team recommended that the best

way for petitioner to maximize the value of Neches was for Morgan Joseph to

create an "auction environment" through an "orchestrated sale process" to sell

¹°In an email dated September 5, 2003, petitioner told Mr. Abboud that the

inside basis of Neches' assets was approximately $10 million and told Mr.

Abboud to assume that his outside basis in Neches stock was zero.

- 12 [*12] Neches' assets and then to hold a separate bidding contest "among various

NOL companies who are interested in buying shell companies with post-sale cash

and tax liabilities".

Following the conference call, petitioner decided not to hire Morgan Joseph

because of his existing connections with many of the potential buyers and because

of Morgan Joseph's sizable retainer fees. However, petitioner stayed in contact

with Mr. Abboud and kept Mr. Abboud updated on the status of various deals that

he was working on.

V.

Sale of Neches' Operating Assets

In April 2004 petitioner met with executives from Kinder Morgan regarding

the sale of Neches' assets. Negotiations lasted all day, and the parties reached a

"hand-shake deal" at a baseball game of petitioner's son. Kinder Morgan wished

to close the transaction by June 1, 2004. On May 3, 2004, Neches and Kinder

Morgan signed a nonbinding term sheet regarding the sale of Neches' operating

assets.

On May 6, 2004, petitioner called Mr. Wellington of MidCoast and

informed him of the asset sale to Kinder Morgan. On May 7, 2004, Mr.

Wellington sent petitioner a letter requesting Neches' most recent financial

statements and tax returns, an updated tax basis of the assets being sold, and

- 13 [*13] various other financial information so that he could "revise the comparative

stock acquisition exhibit premised on the $26m asset sale". Mr. Wellington

further represented that if he received the requested information by next week, he

could "almost guarantee MidCoast will meet your intended timeframes and

maximize your net proceeds".

The Kinder Morgan deal did not go through. Martin, one of Neches'

tenants, held a right of first refusal to purchase Neches' assets within 10 days of a

purchase agreement. On May 11, 2004, Neches notified Martin of the pending

sale to Kinder Morgan. On May 28, 2004, Martin notified Neches that it would

exercise its right of first refusal. On June 1, 2004, Neches and Martin entered into

a purchase and sale agreement in which Martin agreed to purchase for $25.5

million all of Neches' operational assets (including land, tanks, dock facilities,

rails, buildings, pipelines, and all other physical facilities affixed to the land).

Martin also purchased Neches' intangible assets, including its contracts, goodwill,

licenses and permits, intellectual property rights, and rights in insurance proceeds.

Pursuant to the purchase and sale agreement, Neches retained its preclosing

liabilities, including a prepaid lease obligation to Koch Nitrogen International Sarl

- 14 [*14] (Koch),¹¹ litigation liability relating to a title dispute in a newly constructed

ammonia tank,¹² and environmental liabilities. In addition, the purchase and sale

agreement required Neches to set aside funds from the purchase proceeds into

various escrow accounts (collectively PAT and Koch escrows), including: (1)

$300,000 in a "PAT Tank Repair Escrow" account;¹³ (2) $140,000 in a "Port

Arthur Tank Escrow" account; and (3) $2,500,000 in a "Koch Lien Escrow"

account.¹4

¹¹In or around 2000 Neches entered into a lease agreement with Duke

Energy (Duke) scheduled to begin in November 2005. Pursuant to the lease

agreement, Duke made a $2.5 million "prepaid rent" payment to Neches. When

Koch purchased Duke, Duke assigned its Neches lease to Koch. Kinder Morgan

was concerned that a natural disaster would render the Beaumont site unable to

deliver on Neches' lease obligations, and it negotiated for petitioner to be liable

for such contingencies.

¹²In late 2003 petitioner hired a company called Port Arthur to construct two

ammonia storage tanks (PAT tanks), which were completed in early 2004. During

water tests, one of the tanks experienced foundation failure. As a result of the

construction defect, petitioner did not make the final payment on the PAT tanks,

resulting in a mechanic's lien of $138,000 on the tanks.

¹³Pursuant to the purchase and sale agreement, Neches was responsible for

the repair costs of the defective PAT tank. Thus, if repair costs were less than

$300,000, Neches would be refunded the difference from the "PAT Tank Repair

Escrow". If repair costs exceeded $300,000, Neches would pay Martin the

difference. Repair costs ultimately totaled $181,000, leaving the "PAT Tank

Repair Escrow" with $119,000 belonging to Neches.

¹4Pursuant to the purchase and sale agreement, unless Martin defaulted on

(continued...)

- 15 [*15] Also on June 1, 2004, petitioner signed a noncompetition agreement with

Martin which precluded him from entering the ammonia storage and handling

business within the United States and from engaging in general terminaling

services within 150 miles of the Gulf Coast for a term of 10 years. As

consideration, Martin paid petitioner $1.5 million, with $1 million due at closing

and $50,000 paid each year for 10 years.

On June 1, 2004, Martin wired $26,284,778.02 in asset purchase proceeds

to an escrow account at the Beaumont Title Co. On June 2, 2004, after various

expenses had been paid and the PAT and Koch escrows had been funded from the

asset sale proceeds, Beaumont Title Co. transferred $21,270,547.75 to Neches'

Merrill Lynch bank account. Also on June 2, 2004, Beaumont Title Co.

transferred $1 million to petitioner's personal bank account.¹5

Following the asset sale to Martin, Neches had no operating assets and

could no longer operate as an ammonia facility. In connection with its purchase of

"(...continued)

the Duke lease agreement as a result of force majeure, Neches would receive from

the escrow account $104,166.67 on the last date of each month starting on

November 30, 2005, and continuing until no funds were left in escrow.

¹5Petitioner did not report the $1 million as income on his personal 2004

Federal income tax return.

- 16 [*16] the Neches assets, Martin also hired approximately half of Neches'

employees. Shortly thereafter, Neches terminated the employment of its remaining

employees.

VI.

Stock Enhancement Transaction

While the asset sale was pending, on May 13, 2004, Mr. Abboud told

petitioner about a firm that "provides the same services as Midcoast albeit using a

different structure. * * * The attraction to this group is that I believe they will pay

you more than Midcoast for the stock of the company." Mr. Abboud asked

petitioner who he was using for tax counsel, and petitioner put Mr. Abboud in

contact with Mr. Thomas and Keith Kelly, a certified public accountant (C.P.A.)

and vice president of Funchess.

On May 28, 2004, petitioner wrote to Mr. Thomas regarding his plans after

the close of the Martin asset sale:¹6

Robert, remember as we get into Pat Tank, Koch, etc - all escrow

accounts, names need to be something besides Neches. Next step

after Tuesday (assuming it happens) is to wind Neches down and sell

Neches stock to "stock enhancement group"--NY wall street deal--I

can explain this to you.

'6Petitioner waived in writing the attorney-client privilege as to Mr.

Thomas' representation in these transactions.

- 17 [*17] Petitioner understood that the buyer in a stock enhancement transaction

viewed the acquired company's tax liability as an asset that it could utilize. On

July 2, 2004, petitioner explained the stock enhancement transaction to Mr.

Thomas as follows:

Stock enhancement is based entirely on tax liability. The fed & state

tax liability is the magical amount of cash that has to be in Neches.

* * * I was simply trying to find an easy path forward to getting

Yacht Club,l¹71 escrows and misc A/R out of Neches in order to

execute [the] stock enhancement deal.

A.

Morgan Joseph Hired To Orchestrate Stock Enhancement Transaction

At some point before June 7, 2004, petitioner received a letter of intent from

MidCoast offering to purchase Neches at a $2.7 million premium--the purchase

price in excess of Neches' fair market value. Petitioner forwarded MidCoast's

offer to Mr. Abboud. Mr. Abboud was surprised that MidCoast had offered a

premium representing 39% of Neches' Federal tax liability, rather than the 33%

that MidCoast traditionally used to calculate its premium payment.

Morgan Joseph offered to orchestrate a sale of Neches' stock for a $450,000

fee. This fee was based on the difference between the premium offered by

¹?Yacht Club Holdings, L.P. (Yacht Club), is a partnership engaged in the

development of commercial office buildings. At the time, Yacht Club was owned

90% by Neches and 10% by the Richard H. Cullifer Revocable Trust (RHC Trust),

which petitioner had created.

- 18 [*18] MidCoast (39% ofNeches' Federal tax liability) and the premium offered by

another company (65% of Neches' Federal tax liability). On June 16, 2004,

petitioner, as president of Neches, signed an engagement agreement to hire

Morgan Joseph to render financial and advisory investment banking services for

the sale of Neches stock.¹³

B.

Mr. Thomas Sounds Warning Bells

On June 18, 2004, Mr. Thomas wrote to petitioner expressing concerns

about the viability of the stock enhancement transaction:

After talking with Omar, I still have the same feeling that any buyer

of the stock may not be able to get the tax benefits they think they

will get if they ever get audited. But, that won't be OUR issue as

long as we carefully limit our reps and warranties in the sale

agreement. * * *

Mr. Thomas concluded:

DO NOT SIGN ANY LETTER OF INTENT OR ANYTHING ELSE

REGARDING A POTENTIAL NIP STOCK SALE UNTIL YOU

LET ME REVIEW/BLESS IT FROM THE LEGAL END. WE

DON'T WANT TO GET TRAPPED HERE.

On June 29, 2004, Mr. Thomas wrote to Mr. Walters and Mr. Abboud

seeking certain representations and warranties in a stock purchase and sale

'8Although petitioner signed the engagement agreement in his capacity as

president of Neches, Morgan Joseph's objective was to maximize the value of the

Neches stock.

- 19 [*19] agreement, including: (1) petitioner would not warrant that MidCoast could

achieve the desired tax outcome; (2) MidCoast would not be entitled to any

purchase price reduction if, on audit, the desired tax outcome is not achieved; (3)

MidCoast would bear the costs of a tax audit; and (4) MidCoast would indemnify

petitioner against any tax claims arising from the transaction. That same day, Mr.

Abboud replied stating:

I don't believe anyone will give you what you are requesting. It

amounts to a road map for anyone challenging the deal.

Richard is selling the stock of his company. If a buyer sees

value in the tax attributes, whatever they are (NOL's, etc), so be it.

We wouldn't ask for your specific protections in a straight stock sale

under any other circumstances.

I agree that Richard needs protection in the agreements, but I

would think that a Rep that the buyer is acquiring ALL liabilities

other than x,y,z would suffice.

On June 30, 2004, Mr. Thomas replied:

Well, Omar, actually it just amounts to me looking out for my client.

I'm not trying to kill a deal, make a sale or make a commission here.

Where I am from, there is a time-honored axiom of high finance

which goes like this: pigs git fat, and hogs git et.

C.

Pre-Stock-Sale Asset Transfers

After the sale of Neches' operating assets to Martin and before the Neches

stock sale, petitioner caused Neches to transfer many of its remaining assets to

- 20 [*20] entities controlled by petitioner and entities controlled by the Weitzman

family--i.e., Furtivus, Inc. (Furtivus), Hawco, Inc. (Hawco), and Tapel Financial

Corp. (Tapel).

During May through August 2004 Neches made the following cash transfers

to Rich International,¹9 Yacht Club and Buffalo Holdings:

Recipient

Date

Amount

Rich International

5/6/2004

$50,000

5/24/2004

25,000

5/7/2004

10,000

5/24/2004

10,000

6/4/2004

200,000

7/31/2004

249,860

8/3/2004

50,000

6/4/2004

200,000

Yacht Club

Buffalo Holdings

In addition, on June 20, 2004, Neches assigned the $2.5 million "Koch Lien

Escrow" account to Yacht Club. On July 6, 2004, Neches paid $39,481.36 to

Toyota of Stuart for the purchase of a Toyota 4 Runner, which was recorded in its

general ledger as a management fee to Rich International. Finally, on August 3,

¹9These cash transfers are in addition to the management fees that Neches

paid to Rich International for petitioner's services and expenses.

- 21 [*21] 2004, Neches sold its 90% interest in Yacht Club to Buffalo Holdings, in

exchange for a $3,294,382.14 promissory note from Buffalo Holdings.

With respect to the Weitzman family, on June 3, 2004, Neches paid

$1,562,952 to Hawco to retire its debts to Furtivus and Hawco. In addition, on

June 14, 2004, Neches transferred $5,320,355.76 to Tapel.

D.

Petitioner Selects MidCoast for Stock Enhancement Transaction

On July 2, 2004, Mr. Abboud and Mr. Walters held a conference call with

petitioner to discuss a bid summary that the Morgan Joseph team had prepared.

The bid summary compared the purchase offers of three companies--Krilacon, Red

Bridge, and MidCoast.

Krilacon

Red Bridge

MidCoast

Purchase price

$11,552,083

$11,210,000

$10,523,753

Assumed tax liability

$6,612,925

$6,856,660

$6,856,660

Shareholder premium

$4,212,925

$4,113,996

$3,428,330

Percent of tax liability

63.7

60

50

$1,584,947

$1,486,018

$800,352

Premium amount over original

MidCoast premium offer

Because petitioner had brought MidCoast "to the table", Morgan Joseph's fees for

a stock sale to MidCoast was $275,000, rather than the $450,000 fee for a sale to

Krilacon or Red Bridge, whose involvement Morgan Joseph had secured. In

- 22 [*22] addition to the purchase price, MidCoast agreed to reimburse petitioner for

the $275,000 fee.

Petitioner performed minimal due diligence for the stock sale. Although

petitioner asked Mr. Thomas to check the bidders' references, petitioner did not

instruct any of his advisers to research the bidders' financial situation, their history

or operations, the status of previously acquired companies, how the desired tax

outcomes would be achieved, or the legality of the stock enhancement concept.

The MidCoast references Mr. Thomas called were Mark Fullmer, Gerald

Mogg, and Robert Barron.2° Mr. Thomas did not ask any of the references what

happened to the companies after the transaction, nor did he question them about

the transaction's tax aspects or potential risks.

Even though MidCoast offered the lowest shareholder premium, petitioner

ultimately selected MidCoast for the stock enhancement transaction. According to

petitioner, MidCoast was his top choice because he had developed a level of

comfort and familiarity with MidCoast from his prior interactions with MidCoast

2°Mr. Fullmer was an attorney who had represented a client in a recent stock

sale to MidCoast. Mr. Mogg was a seller-side accountant involved in a prior stock

sale. Finally, Mr. Barron had represented a client in the stock sale to MidCoast

but was currently MidCoast's attorney for the Neches stock sale.

- 23 [*23] and from seeing its name for many years on a building along I-95 in Palm

Beach County, Florida.

At the request of Morgan Joseph, MidCoast submitted a revised letter of

intent dated July 9, 2004, for a proposed acquisition of 100% of Neches' stock at a

$3,814,729 premium. On July 9, 2004, petitioner, personally and as president of

Furtivus,2' signed the revised letter of intent.

On July 16, 2004, Mr. Thomas wrote to petitioner suggesting that he

consider hiring an additional attorney to represent him in the stock sale to

MidCoast. Mr. Thomas explained that he and MidCoast's lawyers could start

"digging in against each other" over certain terms which would "protect us if the

Services comes calling" and "keep you from being any worse off than if you just

dissolved NIP and took the cash." Such terms include "Midcoast's indemnity of

you for any taxes, penalties, interest due on IRS audit of our 2003-2004 tax

return" and an "agreement not to liquidate NIP and Midcoast for a period of years

(3-5 maybe)."

2¹Petitioner was appointed the president of Furtivus in spring of 2004 to

facilitate the sale of Neches' assets to Martin and to sign related documents.

- 24 [*24] E.

Petitioner Becomes 100% Shareholder of Neches

Upon further reflection, Furtivus decided that it did not want to proceed

with the MidCoast stock enhancement transaction. On August 16, 2004, Neches

executed a stock redemption agreement to redeem Furtivus' interest in Neches for

$7,250,000. The stock redemption agreement was to be effective June 30, 2004,

before the date on which Furtivus signed the MidCoast letter of intent. On August

17, 2004, Neches wired the stock redemption payment to related-entity Hawco.

F.

Special Dividend to Petitioner

On August 19, 2004, petitioner, as sole director of Neches, caused Neches

to declare a special dividend to himself of $3,727,121.10. In satisfaction of that

dividend, Neches assigned to petitioner: (1) a Hibernia National Bank operating

account of $7,171.58; (2) the "Port Arthur Tank Escrow" account of $140,000; (3)

the "PAT Tank Repair Escrow" account of $119,000; (4) a Chemcycle loan

receivable of $8,075.02; (5) insurance premium refunds of $158,492.47; and (6)

the Buffalo Holdings promissory note of $3,294,382.14. The cumulative value of

the assets distributed was $3,727,121.21.

G.

Neches' Balance Sheet as of August 24, 2004

Following the Martin asset sale, William (Keith) Kelley of Funchess

prepared Neches' compiled fmancial statements as of August 24, 2004, and

- 25 [*25] calculated Neches' tax liabilities as of that date. In performing these duties,

Mr. Kelley did not audit Neches' books nor review its general ledger for accuracy.

Since Neches had not engaged in any transactions following the special dividend

and before the stock sale, Neches' balance sheet appeared as follows on both

August 19 and 25, 2004.

Assets

Cash

$6,228,170

Accrued interest receivable

Total Assets

4,800

6,232,970

Liabilities

Accrued Federal income tax

5,972,050

Prepaid estimated tax

(243,000)

Accrued Florida income tax

18,992

Accrued Texas franchise tax

746,542

Total liabilities

6,494,584

Shareholder's equity

Total equity

(261,614)

In calculating Neches' Federal income tax liability, Funchess did not reduce

Neches' taxable income by the accrued Texas franchise tax because that expense

is not deductible until it is paid.

- 26 [*26] H.

MidCoast Stock Purchase and Sale Agreement

Meanwhile, on August 4, 2004, Chandrakant Shah, part owner and manager

of MidCoast, created Neches Holdings, LLC (Neches Holdings), to be the

acquiring entity in the Neches stock sale transaction. MidCoast was Neches

Holdings' sole member and manager.

On or around August 10, 2004, MidCoast sent Mr. Thomas a draft purchase

and sale agreement (PSA) for the purchase of Neches stock. This agreement

identified Neches Holdings as the buyer. Mr. Thomas was alarmed by this

substitution and wrote to petitioner:

One thing right off the top that should be a deal killer--where the hell

did Midcoast go? If we do the deal with "Neches Holdings, LLC, a

Delaware LLC" we might as well be going with "Red Bridge" or

"Krilacon". The business risk to you without Midcoast or other party

with money is that there is no one there to step up and honor the

indemnity for tax liabilities fye [(for year ending)] 9/30/04 which

would otherwise be due on corp asset sale to Martin if IRS comes

calling in 2005, or Neches Holdings does something screwey post

stock sale that gets us in trouble with IRS or whoever. Seems to me

Midcoast must be a party or at least guarantee the performance of all

obligations, etc of Neches Holdings under the agreement.

On August 25, 2004, a share purchase agreement was executed among

MidCoast, Neches Holdings, Neches, and petitioner. The agreement provided that

MidCoast would pay petitioner $3,486,433 in return for all outstanding Neches

stock. The agreement further provided that Neches Holdings would be

- 27 [*27] responsible for filing and paying Neches' State and Federal income tax

liability for the fiscal year ending September 30, 2004 "to the extent that such tax

liability is due given the Company's post-closing business activities". On the

same day, Neches Holdings borrowed $3,386,433 from MidCoast by demand note.

The law firm Berger Singerman acted as the escrow agent for the

transaction. The purpose of the escrow arrangement was two-fold: to ensure that

the cash would remain in Neches when ownership was transferred, and to ensure

that Neches was being purchased using outside funds. Pursuant to the share

purchase agreement, on August 25, 2004, Neches wired $6,232,970 and MidCoast

wired $3,593,353 to a Berger Singerman trust account. On August 26, 2004,

Berger Singerman wired $6,232,970 from its trust account to an account held by

Neches. Also on August 26, 2004, Berger Singerman wired $3,486,433 into an

account held by petitioner. On August 27, 2004, Berger Singerman wired the

remaining $106,920 to MidCoast. After closing, MidCoast paid $275,000 to

Morgan Joseph for petitioner's investment banking fees. Petitioner did not report

the gain from the sale of Neches stock on his personal 2004 Federal income tax

return.22

22An Internal Revenue Service (IRS) audit of petitioner's 2004 personal tax

return in 2007 revealed that petitioner had failed to report the $1 million

(continued...)

- 28 [*28] VII.

MidCoast and Neches Holdings' Post-Stock-Sale Transactions

Following the stock sale and unbeknownst to petitioner, MidCoast and

Neches Holdings engaged in a number of transactions to further remove assets

from Neches and to offset its taxable gain.

On August 31, 2004, Neches wired $5,317,970 to MidCoast in return for a

demand note from Neches Holdings (first demand note). On September 23, 2004,

Neches wired another $189,920 to MidCoast in return for another demand note

from Neches Holdings (second demand note).

On September 24, 2004, Neches Holdings sold Neches to Wilder Capital

Holdings, LLC (Wilder), and as consideration, Wilder assumed the liabilities for

the first and second demand notes. Wilder was owned by Craig Stone, Larry

Austin, and Walter Schmidt, who also owned Bay Area Business Enterprises, Ltd.

(BABE), the Starwalker Group, LLC (Starwalker), and Korea Star Distressed

Asset Fund, LLC (Korea Star). On that same day, Neches declared a dividend to

Wilder, distributing the first and second demand notes. Also on September 24,

2004, Neches declared a special dividend to Craig Stone and Korea Star and wired

22(...continued)

noncompete payment and the gain from his sale of Neches stock. Shortly

thereafter, petitioner paid the deficiency, penalties, and interest resulting from

these omissions.

- 29 [*29] $500,000 to BABE as payment for the special dividend. These transactions

left Neches with a negative cash balance.23

On September 28, 2004, Wilder contributed a 90.39% interest in a Michael

Carrie, Inc., loan (MCI loan) to Neches.24 The MCI loan was part of a portfolio of

distressed debts purchased at auction by BABE for $300,000 on December 26,

2003.

VIII. Neches' Federal Income Tax Return

Neches' Federal income tax return for the period ending September 30,

2004, was signed by Craig Stone as president and was received by the IRS on

April 11, 2005. On this return, Neches reported capital gain of $15,246,396 from

the asset sale and $5,307,598 of rental income. To offset some of that gain,

Neches claimed a loan basis of $17,870,854.81 in the MCI loan and a bad debt

loss of $17,781,501. Neches claimed a $825,388 loss on its tax return for the

period ending September 30, 2004. On May 10, 2005, the IRS received from

Neches a Form 1139, Corporation Application for Tentative Refund, which

23On September 10, 2004, before to the stock sale to Wilder, Neches also

wired $100,000 to Starwalker and $125,000 to BABE, entities affiliated with

Wilder.

24Michael Carrie, Inc., was a clothing manufacturer in the New Jersey area

that had gone out of business in the late 1990s.

- 30 [*30] claimed an NOL carryback of $825,388 for the tax year ended September

30, 2004. On June 13, 2005, the IRS issued a refund to Neches of $126,294,

which was deposited into a BABE account a day later. In addition, the IRS had

previously refunded Neches' prepaid taxes of $243,000 on December 9, 2004,

which had also been deposited into a BABE account on January 11, 2005.

IX.

IRS Audit of Neches

In 2007 and 2008 respondent conducted an investigation into Neches'

taxable years ended September 30, 2003, and September 30, 2004. On April 8,

2008, respondent mailed Neches a notice of deficiency, which disallowed a

deduction for management fees of $976,076, a deduction for professional fees of

.$262,529, and a $17,781,501 bad debt loss for the MCI loan. The notice of

deficiency was returned to the IRS unclaimed. Neches did not respond to

respondent's examination nor did it file a petition with the Tax Court in response

to the notice of deficiency. On August 6, 2008, respondent assessed the tax and

penalties set forth in the nötice of deficiency for the years at issue.

TYE Sept. 30

Deficiency

Penalty

sec. 6662

2003

$126,294

$50,518

2004

6,363,993

2,489,400

-31[*31] Revenue Officer Jerry Young (RO Young) was assigned to collect on

Neches' outstanding tax. RO Young filed notices of Federal tax lien with the

Texas and Florida secretaries of state and sent copies to Neches. He further sent

Neches a Form 1058, Notice of Balance Due, informing Neches of its collection

appeal rights. Neches did not respond to these letters.

RO Young checked various Internal Revenue Service internal databases for

bank accounts held by Neches and levied, mostly unsuccessfully, on the accounts

that he had found. RO Young also investigated Neches' tangible assets and

determined that Neches had no tangible assets from which to collect.

Accordingly, RO Young determined Neches' tax liabilities for the years at issue to

be noncollectible outstanding accounts.

On January 6, 2009, respondent sent petitioner a letter informing him that

the IRS was conducting a transferee liability examination of petitioner concerning

Neches' tax liabilities for the years at issue. On June 2, 2011, respondent sent

petitioner a notice of liability.

X.

Expert Witnesses

The parties presented expert testimony on a number of disparate matters.

Petitioner presented the report and testimony of expert witness S. Todd Burchett to

prove that Neches was solvent at the time of the stock sale. Mr. Burchett is a

- 32 [*32] certified public accountant (C.P.A.), senior appraiser accredited by the

American Society of Appraisers (ASA), and certified in financial forensics and

accredited in business valuation by the American Institute of Certified Public

Accountants (AICPA). Mr. Burchett maintained that under a solvency analysis,

the Texas franchise tax is assumed to have been paid and therefore would be

treated as a deductible expense. Treating the franchise tax as a deductible expense

would have reduced Neches' Federal income tax liability by $283,686, resulting in

equity of $22,072. Accordingly, Mr. Burchett concluded that Neches was not

insolvent as of August 19 and 25, 2004.

Respondent presented the reports and testimonies of two expert witnesses-Francis Burns and Steven Hastings. Mr. Burns is a senior appraiser accredited by

the ASA, is accredited in business appraisal review by the Institute of Business

Appraisers, holds a master's degree in finance and economics, and has over 25

years of valuation experience. Mr. Hastings is a C.P.A., is certified in financial

forensics by the AICPA, and has over 20 years of fmancial and valuation

experience.

Mr. Burns submitted two reports: one valuing Neches' intangible assets as

of August 25, 2004, and the other valuing a 90.39% interest in the MCI loan.

With respect to Neches' intangible assets, Mr. Burns noted that pursuant to its

- 33 [*33] purchase and sale agreement with Martin, Neches sold the following

intangible assets: rights to intellectual property, including patents and trademarks;

licenses and permits used in operation; accounts, instruments, and intangibles; and

goodwill. Mr. Burns concluded that following the asset sale Neches no longer had

any "going concern value" because it had disposed of all of its income-generating

assets and had no continuing earning power. Mr. Burns further concluded that any

"personal goodwill" arising from petitioner's special skills or reputation could not

be capitalized upon because such goodwill is generally nontransferable and

unmarketable, petitioner had resigned from Neches, and petitioner had signed a

10-year noncompete agreement precluding him from working in the ammonia

storage industry. Finally, Mr. Burns concluded that Neches' only identifiable

intangible asset of value was its incorporation status and its previously incurred

incorporation costs, which he estimated to be less $10,000.

With respect to the value of a 90.39% interest in the MCI loan that Wilder

contributed to Neches, Mr. Burns determined its value on the basis of a BABE

collectibility assessment. The MCI loan had been acquired as part of a

nonperforming loan portfolio by BABE on December 26, 2003. BABE paid

$300,000 for the entire loan portfolio, which had a total outstanding balance of

$139,225,253. The MCI loan, with an outstanding balance of $19,770,855,

- 34 [*34] represented 28.1% of the loans not designated "not collectable" or 55.2% of

loans designated "collectible". Accordingly, Mr. Burns valued the MCI loan at a

midpoint value of $124,900 and calculated a 90.39% interest of the loan to be

worth $112,900.

Mr. Hastings also submitted two expert reports: one regarding industry due

diligence standards for a sale of stock and the other regarding Wilder's profit

potential in contributing a 90.39% interest in the MCI loan to Neches.25 With

25Mr. Hastings also opined on the business purpose and economic substance

of the stock sale to MidCoast and Wilder's contribution of the MCI loan interest.

The economic substance and business purpose of a transaction is a mixed

question of fact and law, but the ultimate determination of whether to

recharacterize a transaction because it lacks economic substance or a business

purpose is a matter of law exclusively within the purview of a court. See, e.e.,

Shellito v. Commissioner, 437 Fed. Appx. 665, 669 (10th Cir. 2011) ("Whether

the form over substance, economic substance, or similar doctrines apply, is a

mixed question of fact and law; but the ultimate determination that such a doctrine

applies is a matter of law which we review de novo."), vacating and remanding

T.C. Memo. 2010-41; Stobie Creek Inys. LLC v. United States, 608 F.3d 1366,

1375 (Fed. Cir. 2010) ("How a transaction is characterized is a question of law we

review de novo. Accordingly, we review the trial court's application of the

economic substance doctrine without deference."); Townsend Indus. Inc. v. United

States, 342 F.3d 890, 898 (8th Cir. 2003) (holding that a business purpose existed

as a matter of law "even if 'business purpose' were to be treated as a question of

fact"); Compaq Computer Corp. v. Commissioner, 277 F.3d 778, 779-780 (5th

Cir. 2001) (holding that whether a transaction has economic substance or a

business purpose is a "legal conclusion" subject to de novo review), rev'e 113

T.C. 214 (1999); Glass v. Commissioner, 87 T.C. 1087, 1172 (1986) (noting that

in determining whether a transaction "lacked economic substance and was

(continued...)

- 35 [*35] respect petitioner's stock sale to MidCoast, Mr. Hastings opined that

petitioner failed to meet industry standards for financial, legal, commercial, and

integration planning due diligence. Mr. Hastings based his conclusion on the

25(...continued)

therefore a sham", "we are here focusing our attention not on questions of fact but

on a question of law"), aff'd sub nom. Lee v. Commissioner, 897 F.2d 915 (8th

Cir. 1989); _c1 Shirar v. Commissioner, 916 F.2d 1414, 1417 n.3 (9th Cir. 1990)

(noting that although "whether a transaction is lacking in economic substance is

perhaps a mixed issue of law and fact", such determination is reviewed "under the

clearly erroneous standard because it is essentially a factual determination"

(citations and quotation internal marks omitted.)), rev's T.C. Memo. 1987-492.

But see Nicole Rose Corp. v. Commissioner, 320 F.3d 282, 284 (2d Cir. 2003)

("Whether a transaction lacks economic substance is a question of fact that we

review under the clearly erroneous standard."), aff'g 117 T.C. 328 (2001); ACM

P'ship v. Commissioner, 157 F.3d 231, 245 (3d Cir. 1998) ("[W]e review * * *

[the Tax Court's] factual findings, including its ultimate finding as to the

economic substance of a transaction, for clear error."), aff'g in part and rev'g in

p_aA T.C. Memo. 1997-115; Rice's Toyota World, Inc. v. Commissioner, 752 F.2d

89, 92 (4th Cir. 1985) ("Whether under this test a particular transaction is a sham

is an issue of fact[.]"), aff'g in part, rev'g in part 81 T.C. 184 (1983); Packard v.

Commissioner, 85 T.C. 397, 428 (1985) ("[B]usiness purpose is a question of fact,

[and] we must look to all of the facts and circumstances[.]").

An expert witness' testimony "is admissible only insofar as it assists the

trier of fact, through the application of scientific, technical, or specialized

expertise, to understand the evidence or to determine a fact in issue", and

"opinions regarding the legal standards applicable to this case are outside of his

competence and must be excluded." City of Tuscaloosa v. Harcros Chems.,

Inc.,158 F.3d 548, 565 (11th Cir. 1998); see also Montgomery v. Aetna Cas. &

Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990) ("A[n] [expert] witness also may

not testify to the legal implications of conduct; the court must be the * * * only

source of law.") . Consequently, we give no weight to Mr. Hastings' business

purpose and economic substance analysis.

- 36 [*36] following facts: (1) petitioner failed to investigate MidCoast's financial

status and funding sources; (2) failed to research MidCoast's legal standing and

litigation record; (3) failed to research the business mechanics of the asset

recovery business; and (4) failed to investigate the operations of previously

acquired entities that had allegedly been converted into the asset recovery

business.

With respect to the MCI loan contribution, Mr. Hastings concluded that the

potential for profit was virtually nonexistent. According to Mr. Hastings, an asset

recovery firm generally expects to collect $3 for every $1 spent on a debt

portfolio. One of the three dollars would pay for collection costs, another would

pay for the investment itself, and the third would be profit. The loan portfolio

purchased by BABE comprised 202 individual loans originated before Korea First

Bank (KFB). While the exact ages of the loans are unknown, they were all

originated before December 30, 1999. Mr. Hastings opined that the age of the

KFB loans indicated a low probability of collection due to difficulties in locating

the debtors and the likely existence of previous collection attempts. Mr. Hastings

further noted that historical collections on the KFB loans had been low. Between

January 1, 2000, and November 30, 2003, a total of $641,627 was collected on the

entire loan portfolio, which represented a holding period collection rate of .46% of

- 37 [*37] the face amount or an annualized collection rate of .11%. No collections

had occurred on the MCI loan. On the basis of these historic collection rates and

Neches' lack of collection efforts, Mr. Hastings concluded that Neches' profit

potential was "very limited". In fact, Mr. Hastings' profitability analysis showed

that BABE and Neches would have had to collect 1.3% of the KFB portfolio's

valid loan balances to merely recoup its investment and collection costs.

Mr. Hastings also opined that the contribution of only a portion of an

individual loan was highly unusual in the asset recovery business because

nonsyndicated loans of that size were considered illiquid investments, and thus not

viable candidates for partitioning. Moreover, asset recovery firms typically did

not service only portions of a particular loan.

Discussion

I.

Background and Mechanics of an Intermediary or "Midco" Transaction

The transactions in this case have been described by the Commissioner as

an intermediary transactions tax shelter (intermediary transaction). See Notice

2001-16, 2001-1 C.B. 730, clarified by Notice 2008-111, 2008-51 I.R.B. 1299.

Transactions that are the same or substantially similar to those described in Notice

2001-16, supra, are identified as "listed transactions" for the purposes of section

1.6011-4(b)(2), Income Tax Regs., effective January 19, 2001. See Notice 2001-

- 38 -

[*38] 16, supra; Notice 2008-111, secs. 1, 6, 2008-51 I.R.B. at 1299, 1301.

Intermediary transactions have also been referred to as "Midco" transactions. Sem

es, Diebold Found., Inc. v. Commissioner, 736 F.3d 172, 175 (2d Cir. 2013),

vacating and remanding Salus Mundi Found. v. Commissioner, T.C. Memo.

2012-61.

Ordinarily, shareholders of a C corporation can dispose of their interests in

two ways: an asset sale or a stock sale. In an asset sale, the C corporation triggers

the built-in gain in its appreciated assets, sec. 1001, and upon a liquidating

distribution to the shareholders, triggers the built-in gain in the stock itself, secs.

331, 1001. In addition, the corporation's payment of the corporate level tax

reduces the amount of cash available for distribution to the shareholders. In a

stock sale, the shareholders sell their stock to a third party, the C corporation

continues to own its appreciated assets, and the corporate-level built-in gain is not

triggered. Generally, buyers prefer to purchase assets and receive a new basis

equal to the purchase price, sec. 1012, whereas sellers disfavor the sale of assets

because of the attendant corporate level tax. Because a stock sale merely defers

the corporate level tax liability, however, a stock sale generally commands a lower

sale price than an asset sale.

- 39 [*39] Mideo or intermediary transactions are engineered to enable buyers to

receive a fair market basis in the assets and for sellers to receive a purchase price

that does not fully discount for the corporate level tax liability. Notice 2001-16,

2001-1 C.B. at 730, describes an intermediary transaction as follows:

These transactions generally involve four parties: seller (X) who

desires to sell stock of a corporation (T), an intermediary corporation

(M), and buyer (Y) who desires to purchase the assets (and not the

stock) of T. Pursuant to a plan, the parties undertake the following

steps. X purports to sell the stock of T to M. T then purports to sell

some or all of its assets to Y. Y claims a basis in the T assets equal to

Y's purchase price. * * *

Notice 2008-111, sec. 2, 2008-51 I.R.B. at 1299, elaborates on intermediate

transactions as follows:

An Intermediary Transaction involves a corporation (T) that

would have a Federal income tax obligation with respect to the

disposition of assets the sale of which would result in taxable gain

(Built-in Gain Assets) in a transaction that would afford the acquiror

or acquirors (Y) a cost or fair market value basis in the assets. An

Intermediary Transaction is structured to cause the tax obligation for

the taxable disposition of the Built-in Gain Assets to arise, in

connection with the disposition by shareholders of T (X) of all or a

controlling interest in T's stock, under circumstances where the

person or persons primarily liable for any Federal income tax

obligation with respect to the disposition of the Built-in Gain Assets

will not pay that tax (hereafter, the Plan). This plan can be

effectuated regardless of the order in which T's stock or assets are

disposed.

- 40 [*40] Notice 2008-111, sec. 3, 2008-51 I.R.B. at 1300, further explains that as a

component of an intermediary transaction "[a]t least half of T's Built-in Tax that

would otherwise result from the disposition of the Sold T Assets is purportedly

offset or avoided or not paid."

The Court of Appeals for the Second Circuit has described one variation of

a Mideo transaction as follows:

"Mideo transactions" or "intermediary transactions" are

structured to allow the parties to have it both ways: letting the seller

engage in a stock sale and the buyer engage in an asset purchase. In

such a transaction, the selling shareholders sell their C Corp stock to

an intermediary entity (or "Midco") at a purchase price that does not

discount for the built-in gain tax liability, as a stock sale to the

ultimate purchaser would. The Mideo then sells the assets of the C

Corp to the buyer, who gets a purchase price basis in the assets. The

Mideo keeps the difference between the asset sale price and the stock

purchase price as its fee. The Midco's willingness to allow both

buyer and seller to avoid the tax consequences inherent in holding

appreciated assets in a C Corp is based on a claimed tax-exempt

status or supposed tax attributes, such as losses, that allow it to

absorb the built-in gain tax liability. See I.R.S. Notice 2001-16,

2001-1 C.B. 730. If these tax attributes of the Mideo prove to be

artificial, then the tax liability created by the built-in gain on the sold

assets still needs to be paid. In many instances, the Midco is a newly

formed entity created for the sole purpose of facilitating such a

transaction, without other income or assets and thus likely to be

judgment-proof. The IRS must then seek payment from the other

parties involved in the transaction in order to satisfy the tax liability

the transaction was created to avoid.

Diebold Found., Inc. v. Commissioner, 736 F.3d at 175-176.

- 41 [*41] The current case involves a twist to the intermediary transaction described

above by the Court of Appeals for the Second Circuit. The tax mechanics of a

Mideo transaction, however, remain the same regardless of the order in which the

stock sale and asset sale occurs. Notice 2008-111, sec. 2. Here, petitioner

engaged in an asset sale before the stock sale. As a result, Neches had already

recognized built-in gain and no longer owned any noncash assets. In both cases,

the stock purchase price did not fully discount for the corporation's tax liability.

In this case, MidCoast's profit comes indirectly from the asset buyer as the amount

of cash left in Neches over the price the buyer paid for the stock. Finally, both

variations of the transaction require Mideo to prevail in offsetting the gain with

losses in order for the transaction to succeed.

II.

Legal Standard and Burden of Proof

Under section 6901, the Commissioner may proceed against a transferee of

property to assess and collect Federal income tax, penalties, and interest owed by a

transferor. The Commissioner may collect a transferor's unpaid tax from the

transferee if an independent basis exists under applicable State law or State equity

principles for holding the transferee liable for the transferor's debts. Sec. 6901(a);

Commissioner v. Stern, 357 U.S. 39, 45 (1958); Hagaman v. Commissioner, 100

T.C. 180, 183 (1993).

- 42 [*42] Section 6901 does not impose liability on the transferee but merely gives the

Commissioner a procedure to collect the transferor's existing liability.

Commissioner v. Stern, 357 U.S. at 42. State law determines the elements of

liability, while section 6901 provides the remedy or procedure to be employed by

the Commissioner as the means of enforcing that liability. Ginsberg v.

Commissioner, 305 F.2d 664, 667 (2d Cir. 1962), a_fffg 35 T.C. 1148 (1961).

Thus, section 6901 places the Commissioner in "precisely the same position as

that of ordinary creditors under state law". Starnes v. Commissioner, 680 F.3d

417, 429 (4th Cir. 2012), a_ff'g T.C. Memo. 2011-63. The applicable State law is

the law of the State in which the transfer occurred. Commissioner v. Stern, 357

U;S. at 45.

The Commissioner may assess transferee liability under section 6901

against a party only if three distinct requirements are met: (1) the transferor must

be liable for the unpaid tax; (2) the party must be a transferee under section 6901

pursuant to Federal tax law principles; and (3) the party must be subject to liability

under the applicable State law or State equity principles. Swords Trust v.

Commissioner, 142 T.C. ___, _ (slip op. at 31) (May 29, 2014); see also Diebold

Found., Inc. v. Commissioner, 736 F.3d at 183-184; Starnes v. Commissioner, 680

F.3d at 427.

- 43 [*43] Section 6902(a) provides that the Commissioner bears the burden of

proving that a person is liable as a transferee. See also Rule 142(d). Section

6902(a) further provides that the Commissioner does not bear the burden of

proving that the transferor is liable for the underlying tax liability. See also Rule

142(d); cfC Rule 142(a)(1); Welch v. Helvering, 290 U.S. 111, 115 (1933) (holding

that the Commissioner's determinations are presumed to be correct, and the

taxpayer bears the burden of proving them wrong).

III.

Neches' Federal Income Tax Liabilities

Under section 6901(a) petitioner may challenge the underlying tax liability

of Neches. See also United States v. Williams, 514 U.S. 527, 539 (1995)

("[C]ertain transferees may litigate the tax liabilities of the transferor; if the

transfer qualifies as a fraudulent conveyance under state law, the Code treats the

transferee as the taxpayer[.]"); L.V. Castle Inv. Grp., Inc. v. Commissioner, 465

F.3d 1243, 1248 (11th Cir. 2006).

In the notice of deficiency to Neches, respondent disallowed deductions for

management fees of $976,076, professional fees of $262,529, and a $17,781,501

writeoff of the MCI loan. Petitioner argues that respondent is precluded from

disallowing the management fees as a business expense of Neches because, during

the audit of his 2004 personal tax return, the IRS made adjustments only to certain

- 44 [*44] management fee payments to the Yacht Club, by allocating 10% of those

payments to the RHC Trust. Petitioner claims that therefore "[r]espondent's

attempt to recharacterize the management fees in this case is nothing more than a

naked attempt to justify his litigating position". We disagree.

Petitioner appears to argue (without citing any legal authority for his

proposition) that the IRS may not take inconsistent positions in determining the

tax liabilities of two related taxpayers. However, we see no inconsistency in

respondent's positions. Whether a payment made by Neches is includible in

petitioner's income is a separate and distinct issue from whether that payment is an

ordinary and necessary business expense ofNeches. Petitioner bears the burden of

establishing that respondent erred in disallowing Neches' claimed management

fees deduction. S_e_e sec. 6902(a); Rule 142(a), (d).

At trial, petitioner testified that every month Rich International invoiced

Neches for his management fees, which covered, among other things, his travel

and Florida office expenses. Petitioner also produced and testified regarding three

representative invoices dated December 29, 2003, January 29, 2004, and March

29, 2004, for $6,143.17, $8,704.07, and $14,042.15, respectively. These invoiced

amounts appear in Neches' general ledger as well. On the basis of petitioner's

testimony, the representative invoices, and Neches' general ledger, we find that

- 45 [*45] petitioner has established that the following management fees are ordinary

and necessary business expenses ofNeches under section 162(a)(1):

Date

Description

Amount

10/2/2003

Rich International, Inc.--Invoice: 370

$6,448.12

11/4/2003

Rich International, Inc.--Invoice: 372

5,647.75

12/1/2003

Rich International, Inc.--Invoice: 374

7,302.86

1/2/2004

Rich International, Inc.

6,143.17

2/3/2004

Rich International, Inc.--Invoice: 378

8,704.07

3/3/2004

Rich International, Inc.--Invoice: 380

7,731.55

4/5/2004

Rich International, Inc.--Invoice: 382

14,042.15

5/4/2004

Rich International, Inc.--Invoice: 384

7,182.86

6/9/2004

Rich International, Inc.--Invoice: 387

9,475.38

7/2/2004

Total

Rich International, Inc.--Invoice: 388

7,135.13

79,813.04

With respect to the remaining management fee entries, respondent argues that the

general ledger is "replete with * * * large, round, unexplained transfers". We

agree. Petitioner has failed to substantiate, with documentary evidence or

otherwise, the remaining management fee entries in Neches' general ledger.

Petitioner also disputes respondent's disallowance of the professional fees

claimed by Neches. However, petitioner has failed to provide any evidence to

substantiate these fees and therefore has failed to meet his burden of proof.

- 46 [*46] Finally, petitioner does not dispute respondent's disallowance of the bad

debt loss for the MCI loan. Accordingly, we sustain respondent's determinations

regarding Neches' tax liabilities for the years at issue, with the exception of

$79,813.04 in management fee expenses.

IV.

Transferee Status Under Section 6901

Whether a person is a "transferee" within the meaning of section 6901 is

"undisputedly [a question] of federal law". See Starnes v. Commissioner, 680

F.3d at 427.

The term "transferee" is an expansive one that includes "donee, heir,

legatee, devisee, and distributee". Sec. 6901(h); see also sec. 301.6901-1(b),

Proced. & Admin. Regs. ("[T]he term 'transferee' includes an heir, legatee,

devisee, distributee of an estate of a deceased person, the shareholder of a

dissolved corporation, the assignee or donee of an insolvent person, the successor

of a corporation, a party to a reorganization as defined in section 368, and all other

classes of distributees."). Moreover, section 6901 clearly contemplates for

"transferee" to include not just an initial transferee, but successive transferees (a

transferee of a transferee) as well. See sec. 6901(c)(1) and (2) (providing differing

periods of limitations for assessment depending on whether a person is an initial

transferee or a transferee of transferee).

- 47 [*47] Petitioner does not argue that he is not a transferee under section 6901, and

we deem that issue conceded. See Mendes v. Commissioner, 121 T.C. 308,

313-314 (2003). In addition, we hold that petitioner falls within the expansive

definition of transferee set forth in section 6901. With respect to the special

dividend and the other pre-stock-sale asset distributions, petitioner is a distributee

of Neches. With respect to the proceeds from the sale of Neches stock, petitioner

is a transferee of Neches Holdings, which itself is a distributee of Neches. Having

established that petitioner is a section 6901 transferee under Federal law

principles, we now address whether petitioner has transferee liability under Texas

State law.26

V.

Transferee Liability Under the Texas Uniform Fraudulent Transfer Act

In deciding matters of State law, the Court of Appeals for the Eleventh

Circuit has held: "In determining the law of the state, federal courts must follow

the decisions of the state's highest court, and in the absence of such decisions on

an issue, must adhere to the decisions of the state's intermediate appellate courts

26Both parties agree that Texas law governs the issue of transferee liability

because the transfers at issue occurred in Texas--i.e., Neches was incorporated in

Texas, conducted business in Texas, had its principal place of business in Texas,

declared its dividends and distributions in Texas, and had bank accounts in Texas.

Moreover, both parties agree that an appeal of this case lies in the Court of

Appeals for the Eleventh Circuit under sec. 7482(b) because petitioner resided in

Florida when he filed his petition.

- 48 [*48] unless there is some persuasive indication that the state's highest court

would decide the issue otherwise." Flintkote Co. v. Dravo Corp., 678 F.2d 942,

945 (11th Cir. 1982); see also Swords Trust v. Commissioner, 142 T.C. at __

(slip op. at 40) (citing Commissioner v. Estate of Bosch, 387 U .S. 456, 465

(1967)) (holding that where a decision involves the applicability of State law, a

Federal court must apply State law in the manner that the highest court of the State

has indicated that it would apply the law), and Estate of Young v. Commissioner,

110 T.C. 297, 300, 302 (1998).

If the State's highest court has not spoken on the subject, then we must

apply what we "find to be the state law after giving 'proper regard' to relevant

rulings of other courts of the State". Commissioner v. Estate of Bosch, 387 U.S. at

465. "'Only where no state court has decided the point in issue may a federal

court make an educated guess as to how that state's supreme court would rule.'"

Flintkote Co., 678 F.2d at 945 (quoting Benante v. Allstate Ins. Co., 477 F.2d 553,

554 (5th Cir. 1973)).

A.

Texas State Law

In 1987 Texas enacted the Uniform Fraudulent Transfer Act of 1984

(UFTA) as chapter 24 of its Business and Commerce Code (TUFTA). Tex. Bus.

& Com. Code Ann. sec. 24.001 (West 2009). Chapter 24 is nearly identical in

- 49 -

[*49] UFTA and TUFTA. Compare TUFTA ch. 24 with UFTA ch. 24. TUFTA

sec. 24.012 provides: "This chapter shall be applied and construed to effectuate its

general purpose to make uniform the law with respect to the subject of this chapter

among states enacting it." Moreover, Tex. Gov't Code sec. 311.028 (West 2013)

instructs that "[a] uniform act included in a code shall be construed to effect its

general purpose to make uniform the law of those states that enact it." Finally, the

Supreme Court of Texas has held that in interpreting TUFTA, courts should

"ensure that * * * [their] construction * *·* is as consistent as possible with the

constructions of other states that have enacted a Uniform Fraudulent Transfer Act

containing a similar provision." Nathan v. Whittington, 408 S.W.3d 870, 873

(Tex. 2013). Accordingly, although we apply Texas State law, we shall give due

consideration to the constructions of other States that have enacted UFTA.

TUFTA has several separate and distinct fraud provisions--two constructive

fraud provisions and one actual fraud provision. The first provision, TUFTA sec.

24.006(a), is a constructive fraud provision that applies regardless of a transferor's

or transferee's actual intent. E. Poultry Distribs., Inc. v. Yarto Puez, No. 3:00-CV-

1578, 2001 WL 34664163, at *2 (N.D. Tex. Dec. 3, 2001). TUFTA sec. 24.006(a)

provides: "A transfer made * * * by a debtor is fraudulent as to a creditor whose

claim arose before the transfer was made * * * if the debtor made the transfer * * *

- 50 [*50] without receiving a reasonably equivalent value in exchange for the transfer

* * * and the debtor was insolvent at that time or the debtor became insolvent as a

result of the transfer".

The second provision, TUFTA sec. 24.005(a)(2), is another constructive

fraud provision that applies regardless of a transferor's or transferee's actual

intent. See First Nat'l Bank of Seminole v. Hooper, 104 S.W.3d 83, 85 (Tex.

2003). TUFTA sec. 24.005(a)(2) provides:

A transfer made* * * by a debtor is fraudulent as to a creditor,

whether the creditor's claim arose before or within a reasonable time

after the transfer was made * * *, if the debtor made the transfer * * *

without receiving a reasonably equivalent value in exchange for the

transfer, and the debtor:

*

*

*

*

*

*

*

(B) intended to incur, or believed or reasonably should have

believed that the debtor would incur, debts beyond the debtor's ability

to pay as they became due.

Finally, the third fraud provision, TUFTA sec. 24.005(a)(1), is an actual

fraud provision, which provides: "A transfer made * * * by a debtor is fraudulent

as to a creditor, whether the creditor's claim arose before or within a reasonable

time after the transfer was made * * *, if the debtor made the transfer * * * with

actual intent to hinder, delay, or defraud any ci·editor of the debtor". TUFTA sec.

- 51 [*51] 24.005(b) sets forth 11 nonexclusive "badges of fraud" that may give rise to

an inference of actual intent.27

With these fraud provisions in mind, we now address whether any of the

transfers made by Neches to petitioner, directly or indirectly, are fraudulent

transfers under TUFTA.

B.

Special Dividend and Other Pre-Stock-Sale Distributions

1.

Transfers Made After June 1, 2004

We first address whether distributions made by Neches between June 1,

2004, and the stock sale are fraudulent transfers under TUFTA's first fraud

27Tex. Bus. & Com. Code ch. 24 (TUFTA), sec. 24.005(b) (West 2009)

provides:

In determining actual intent under Subsection (a)(1) of this

section, consideration may be given, among other factors, to whether:

(1) the transfer or obligation was to an insider; (2) the debtor retained

possession or control of the property transferred after the transfer; (3)

the transfer or obligation was concealed; (4) before the transfer was

made or obligation was incurred, the debtor had been sued or

threatened with suit; (5) the transfer was of substantially all the

debtor's assets; (6) the debtor absconded; (7) the debtor removed or

concealed assets; (8) the value of the consideration received by the

debtor was reasonably equivalent to the value of the asset transferred

or the amount of the obligation incurred; (9) the debtor was insolvent

or became insolvent shortly after the transfer was made or the

obligation was incurred; (10) the transfer occurred shortly before or

shortly after a substantial debt was incurred; and (11) the debtor

transferred the essential assets of the business to a lienor who

transferred the assets to an insider of the debtor.

- 52 [*52] provision, TUFTA sec. 24.006(a). Under this provision, a transfer is

fraudulent as to a creditor if: (1) the creditor's claim arose before the transfer was

made; (2) the debtor did not receive a reasonably equivalent value in exchange for

the transfer; and (3) the debtor was insolvent at that time or the debtor became

insolvent as a result of the transfer.

Respondent's claim against Neches arose when Martin purchased its

appreciated assets--i.e., June 1, 2004. After June 1, 2004, Neches transferred a

number of assets to petitioner and to entities owned, wholly or in part, by

petitioner 28 Following the asset sale to Martin, Neches transferred to Yacht Club

$499,860 in cash and a $2.5 million Koch Lien Escrow account, 10% of which

accrued to the benefit of the RHC Trust. During this period Neches also

transferred $200,000 in cash to Buffalo Holdings and purchased a $39,481.36

28In determining whether a party is a "transferee", Texas courts have

adopted a "legal dominion or control" test--i.e., a transferee is a party who has the

right to put the money or asset to his own use. See, e.g., Newsome v. Charter

Bank Colonial, 940 S.W.2d 157, 165 (Tex. App. 1996) (citing In re Coutee, 984

F.2d 138, 140-141 (5th Cir. 1993) (noting that under the dominion or control test,

a party is a transferee if he gains legal dominion or control over the funds)). As

the sole shareholder of Rich International and Buffalo Holdings, petitioner had full

dominion and control over their operations and assets. Moreover, as the creator of

the RHC Trust, petitioner had dominion and control over the trust's assets.

Finally, as of August 3, 2004, petitioner had full dominion and control over Yacht

Club, which was owned 90% by Buffalo Holdings and 10% by the RHC Trust.

Accordingly, under Texas State law, petitioner is a transferee with respect to

transfers made to entities under his dominion and control.

- 53 [*53] Toyota vehicle for petitioner. Finally, Neches distributed a number of

assets, which it had valued at $3,727,121.21, in satisfaction of a special dividend

to petitioner. Neches did not receive any value, much less "reasonably equivalent"

value, in exchange for these transfers. Finally, Neches became insolvent as a

result of these transfers29--after distributing the special dividend, Neches'

liabilities exceeded its assets by over $260,000.3° Accordingly, we conclude that

Neches' pre-stock-sale distributions made after June 1, 2004, including the special

dividend, are fraudulent under TUFTA sec. 24.006(a).

29These transfers were part of a series of transfers made to remove from

Neches cash and noncash assets until only a "magical" amount of cash remained.

For the purposes of determining insolvency, Texas courts have looked to whether

related transfers, in the aggregate, rendered the debtor insolvent. See, e.g., Arriaga

v. Cartmill, 407 S.W.3d 927, 928 , 932 (Tex. App. 2013) (fmding that the debtor

was insolvent after transferring two properties to his son "shortly after" his appeal

was dismissed); Shelley v. Walnut Place Nursing Home, No. 05-94-01047-CV,

1995 WL 73094, at *5 (Tex. App. Feb. 23, 1995) (finding that the debtor was

insolvent after transferring two properties after a lawsuit was initiated but before

the judgment was rendered) (not designated for publication). Moreover,

insolvency is to "be evaluated from the creditor's perspective." Nat'l Loan Inys.,

L.P. v. Robinson, 98 S.W.3d 781, 784 (Tex. App. 2003).

3°We discredit Mr. Burchett's opinion that Neches was solvent on August 19

and 25, 2004. Mr. Burchett's solvency opinion was contingent on the payment of

Neches' Texas State franchise tax liability. Neches' Texas State franchise tax

liability was never paid.

- 54 [*54]

2.

Transfers Made Before June 1, 2004

Next, we address whether distributions made by Neches between May 3 and

June 1, 2004, are fraudulent transfers under TUFTA's second fraud provision,

TUFTA sec. 24.005(a)(2). Unlike TUFTA's first fraud provision, which applies

only to fraudulent transfers with regard to existing creditors, TUFTA's second and

third fraud provisions apply to present and future creditors. Osherow v. Nelson

Hensley & Consol. Fund. Mgmt., L.L.C. (In re Pace), 456 B.R. 253, 266 (Bankr.

W.D. Tex. 2011). Compare TUFTA sec. 24.006(a) with TUFTA sec. 24.005.

Under TUFTA's second fraud provision, a transfer "is fraudulent as to a creditor,

whether the creditor's claim arose before or within a reasonable time after the

transfer was made" (emphasis added) if: (1) the debtor did not receive reasonably

equivalent value in exchange for the transfer; and (2) the debtor intended,

believed, or reasonably should have believed that he would incur debts beyond his

ability to pay. TUFTA sec. 24.005(a)(2).

Neches made a number of transfers to entities controlled by petitioner

before June 1, 2004--i.e., the date the Martin asset sale closed and the date on

which respondent's claim against Neches arose. In May Neches made transfers

totaling $75,000 to Rich International and $20,000 to Yacht Club (10% of which

is attributable to the RHC Trust). As with the earlier discussed transfers, Neches

- 55 [*55] did not receive any value, much less "reasonably equivalent" value, in return

for these transfers.

These transfers were made after Neches signed a nonbinding term sheet

regarding the sale of its operating assets on May 3, 2004. Therefore, respondent's

claim, which arose within a month of the transfers, arose within a reasonable time

after the transfers. See West v. Seiffert (In re Houston Drywall, Inc.), No. 05-

95161-H4-7, 2008 WL 2754526, at *19 n.23 (Bankr. S.D. Tex. July 10, 2008)

(holding that claim that arose one year after the transfer was within a "reasonable

time" under TUFTA sec. 24.005(a)(2)); _c_£ Williams v. Performance Diesel, Inc.,

No. 14-00-00063-CV, 2002 WL 596414, at *4 (Tex. App. April 18, 2002)

(holding that although the definition of "reasonable time" under TUFTA is not

specifically defined, the four-year statute of limitations suggests that a "reasonable

time" is within four years).

Finally, we find that Neches, through petitioner, intended to incur debts

beyond its ability to pay. As of early May Neches had signed a term sheet for the

sale of its operating assets. Petitioner knew that because ofNeches' low basis in

its assets, Neches would incur substantial capital gain tax liability as a result of the

sale. Moreover, during the pendency of the asset sale, petitioner intended to enter

into a stock enhancement transaction as a "next step". In fact, petitioner had kept

- 56 [*56] in routine contact with Mr. Wellington of MidCoast since August 2003 and

had even told Mr. Wellington that an asset sale closing "looks good" in 2004.

Petitioner understood that the shareholder premium in a stock enhancement

transaction represented a percentage of the acquired corporation's tax liability, and

he knew that the buyer saw the tax liability as an asset that it could use.

Moreover, petitioner intended to remove assets from Neches until only a "magical

amount of cash" remained. We therefore conclude that at the very least, petitioner

reasonably should have known that by entering into an asset sale followed by a

stock enhancement transaction, Neches would incur tax liabilities beyond its

ability to pay.

Accordingly, we conclude that Neches' pre-stock-sale distributions made

after May 3, 2004, are fraudulent under TUFTA sec. 24.005(a)(2).

C.

Sale of Neches' Stock to MidCoast

1.

Collapsing Transaction Under Texas State Law

The parties have not cited, and we did not find, any cases in which a series

of transactions was treated as a single transaction under TUFTA. Nonetheless,

respondent contends that we should look to HBE Leasing Corp. v. Frank, 48

- 57 [*57] F.3d 623 (2d Cir. 1995), and Diebold Found., Inc. v. Commissioner, 736

F.3d 172,3¹ to recharacterize (under Texas State law) the $3.76 million stock sale

as a liquidating distribution of $6.23 million.

In Bowman v. El Paso CGP Co., LLC, 431 S.W.3d 781, 788 (Tex. App.

2014), the Court of Appeals of Texas explained:

"Courts will generally look past the form of a transaction to its

substance. 'Thus an allegedly fraudulent conveyance must be

evaluated in context; where a transfer is only a step in a general plan,

the plan must be viewed as a whole with all its composite

implications.'" Official Comm. Unsecured Creditors of Grand Eagle

Cos. v. ASEA Brown Boverie, Inc., 313 B.R. 219, 229 (N.D. Ohio

2004) (quoting Orr v. Kinderhill Corp., 991 F.2d 31, 35 (2d Cir.

1993)).

In Orr v. Kinderhill Corp., 991 F.2d 31, 35-36 (2d Cir. 1993), the Court of

Appeals for the Second Circuit held that under the New York UFCA, a transfer of

3'Although HBE Leasing Corp. v. Frank, 48 F.3d 623 (2d Cir. 1995), and

Diebold Found., Inc. v. Commissioner, 736 F.3d 172 (2d Cir. 2013), are analyzed

under the Uniform Fraudulent Conveyance Act (UFCA), the predecessor statute to

UFTA, they are nonetheless instructive to our analysis because the collapsing of

transactions is a common law doctrine which would not have been supplanted by

Texas' adoption of UFTA. C_f Waffle House, Inc. v. Williams, 313 S.W.3d 796,

802 (Tex. 2010) (holding that "the legislative creation of a statutory remedy is not

presumed to displace common-law remedies", that "abrogation of common-law

claims is disfavored", and that courts may only "construe the enactment of a

statutory cause of action as abrogating a common law claim if there exists 'clear

repugnance' between the two causes of action"). Moreover, UFTA (and TUFTA)

expressly contemplates supplementation by the common law. UFTA sec. 10;

TUFTA sec. 24.011 ("Unless displaced by the provisions of this chapter, the

principles of law and equity * * * supplement its provisions.").

- 58 [*58] property for corporate shares and a subsequent distribution of those shares

by a debtor corporation should be viewed as a whole in determining whether the

corporation received fair consideration. The court explained: "So viewed, the

restructuring was not supported by fair consideration for, in effect, it was a

gratuitous transfer of the New York Property by * * * [the debtor corporation]."

Id. at 36.

The Court of Appeals of Texas in Bowman, 431 S.W.3d at 783, focused on

the substance of what occurred between a debtor corporation and its shareholder to

determine whether the corporation received reasonable equivalent value. The

court held that because the shareholder allegedly transferred more money to the

corporation than the corporation transferred to the shareholder in the aggregate,

there was a genuine issue of material fact about whether the corporation received

"reasonably equivalent value". Il at 788-789.

- 59 [*59] Mindful of TUFTA sec. 24.012,32 Tex. Gov't Code sec. 311.028,33 direction

from the Texas Supreme Court,34 and the Court of Appeals of Texas' example in

Bowman, we look to caselaw decided under New York UFCA as persuasive

authority in determining whether the substance of the transactions in this case is

that of a liquidating distribution.

"It is well established that multilateral transactions may under appropriate

circumstances be 'collapsed' and treated as phases of a single transaction". HBE

Leasing, 48 F.3d at 635 (citing Orr, 991 F.2d at 35-36). In HBE Leasing, 48 F.3d

at 635, the court described a "paradigmatic scheme" under this collapsing doctrine

in which "[o]ne transferee gives fair value to the debtor in exchange for the

debtor's property, and the debtor then gratuitously transfers the proceeds of the

first exchange to a second transferee. The first transferee thereby receives the

32TUFTA sec. 24.012 provides: "This chapter shall be applied and

construed to effectuate its general purpose to make uniform the law with respect to

the subject of this chapter among states enacting it."

33Tex. Gov't Code sec. 311.028 (West 2013) instructs: "A uniform act

included in a code shall be construed to effect its general purpose to make uniform

the law of those states that enact it."

34In Nathan v. Whittington, 408 S.W.3d 870, 873 (Tex. 2013), the Supreme

Court of Texas has held that in interpreting TUFTA, courts should "ensure that

* * * [their] construction * * * is as consistent as possible with the constructions

of other states that have enacted a Uniform Fraudulent Transfer Act containing a

similar provision."

- 60 [*60] debtor's property, and the second transferee receives the consideration,

while the debtor retains nothing."

These transactions can be collapsed if two requirements are met: (1) "the

consideration received from the first transferee must be reconveyed by the debtor

for less than fair consideration or with an actual intent to defraud creditors"; and

(2) "the transferee in the leg of the transaction sought to be voided must have

actual or constructive knowledge of the entire scheme that renders her exchange

with the debtor fraudulent." Il

Respondent argues that the true substance of the stock sale and subsequent

transactions is a liquidating distribution to petitioner of $6.23 million. We

disagree.

The collapsing of a multilateral transaction into a single transaction is

appropriate only where the outcomes of the multilateral transaction and the recast

transaction are substantively similar.

As petitioner correctly points out, before the stock sale petitioner held all of

Neches' stock with a value of negative $261,614, and MidCoast held $3,761,433

in cash (i.e., $3,486,433 for Neches stock and $275,000 for professional fees

petitioner owed to Morgan Joseph). Following the stock sale petitioner had

$3,486,433 in cash, Morgan Joseph had $275,000 in cash, and Neches Holdings

- 61 [*61] held all of Neches' stock. Both before and after the stock sale Neches held

$6,232,970 in cash and owed $6,494,584 in Federal and State tax liabilities.

Although MidCoast and Neches Holdings ultimately removed $5,732,890 in cash

from Neches before selling it to Wilder, these distributions occurred after the stock

sale and without petitioner's knowledge. ;Even if we were to find that petitioner

had constructive knowledge of these post-stock-sale distributions, petitioner was

not a recipient of those distributions--MidCoast and Neches Holdings were.

Therefore, we conclude that a liquidating distribution of $6.23 million to

petitioner does not reflect the true substance of the stock sale and subsequent

transactions.

Respondent's reliance on HBE Leasing and Diebold Found. is misplaced.

First, HBE Leasing, is distinguishable from the current case. In HBE Leasing, 48

F.3d at 636-637, the debtor gave a transferee a mortgage in return for mortgage

proceeds of $250,000, which it immediately passed on to its majority shareholder.

The court held that the net result of these transactions was that the transferee

received a mortgage from the debtor, the majority shareholder received $250,000

from the transferee, and the debtor itself received nothing. Finding that the

transferee had constructive knowledge that the debtor might improperly funnel the

mortgage proceeds to third parties, il at 637, the court held that the two

- 62 [*62] transactions should be collapsed into a single transaction in which the

transferee received a mortgage from the debtor and the debtor received nothing in

return, id at 635-637. Unlike the transferee in HBE Leasing, petitioner engaged

in a transaction with a third party--i.e., MidCoast--not the debtor--i.e., Neches.

Thus, the first prong of the test set forth in HBE Leasing is not satisfied.

Moreover, in HBE Leasing, the transferee held a $250,000 mortgage regardless of

whether the transactions were collapsed. In contrast, under respondent's theory,

petitioner would be deemed to have received $6.23 million in a liquidating

distribution, rather than the $3.76 million (i.e., $3,486,433 in cash and the

assumption of his $275,000 obligation to Morgan Joseph) he actually received.

Diebold Found. is likewise distinguishable. In Diebold Found., Inc. v.

Commissioner, 736 F.3d at 175-181, the following transactions occurred: (1)

shareholders of Double D, a corporation which held primarily highly appreciated

publicly traded securities and real estate, sold their Double D shares to Shapp II

for $309 million; (2) Shapp II sold the publicly traded securities to Morgan

Stanley, leaving Double D with $319 million in assets and a large capital gain tax

liability; and (3) Shapp II distributed to the shareholders the $309 million, at least

partially, from the proceeds of its sale of the publicly traded securities. The court

held that if "the [above] transactions are collapsed, they will be treated as though

- 63 [*63] Double D sold all of its assets and made a liquidating distribution to the

Shareholders". EL at 187. In Diebold Found., the cumulative effect of the

transactions resulted in the shareholders' receiving nearly 97% of the value of

Double D's assets. In such circumstances, collapsing the multiple business deals

and recharacterizing sale proceeds as a liquidating distribution fairly reflects the

true substance of the transactions. In contrast, petitioner received only 60% of the

value of Neches' assets. We therefore conclude that the true substance of the

stock sale and subsequent transactions in this case is not that of a liquidating

distribution to petitioner. Accordingly, we decline to recast the $3.76 million of

stock sale proceeds as a $6.23 million liquidating distribution.

Our inquiry does not end just because petitioner is a transferee ofNeches

Holdings rather than of Neches with respect to the stock sale proceeds. Petitioner

may still be liable under a transferee-of-transferee theory.

2.

Transferee-of-Transferee Liability

Although petitioner is not an initial transferee of Neches' cash holdings, he

nonetheless has liability as a transferee of a transferee. In Sawyer Trust of May

1992 v. Commissioner, 712 F.3d 597, 606, 612 (1st Cir. 2013), rev'g and

remanding T.C. Memo. 2011-298, the Court of Appeals held that the Tax Court

- 64 [*64] overlooked transferee-of-transferee liability under UFTA35 and remanded to

the Tax Court for further analysis under a transferee-of-transferee theory of

liability.

The facts in Sawyer Trust are similar to the facts of the current case. In

Sawyer Trust of May 1992 v. Commissioner, 712 F.3d at 599-602, a shareholder

trust held a 100% interest in four C corporations with large built-in gains. Two of

the corporations were taxi corporations and the other two were real estate

corporations. E In order to generate the funds necessary to satisfy some large

estate tax liabilities, the trustee decided to sell certain highly appreciated assets of

the C corporations. R The trustee further decided to sell the stock in the

corporations to Fortrend, an entity similar to MidCoast. ½ The stock sale

involved the following steps: (1) "the corporations liquidated their assets and

satisfied all of their nontax liabilities, leaving the corporations with nothing but

cash and tax liabilities"; and (2) "Trust sold all of its stock in the corporations to

various acquisition corporations [that] Fortrend had formed" for "a price equal to

the value of the companies' assets (which by that point consisted only of cash)

35Like Texas, Massachusetts, the State whose substantive law controlled in

Sawyer Trust of May 1992 v. Commissioner, 712 F.3d 597, 603 (1st Cir. 2013),

rev'g and remanding T.C. Memo. 2011-298, also adopted the Uniform Fraudulent

Transfer Act of 1984.

- 65 [*65] minus a percentage of the value of the companies' Federal and State tax

liabilities." Sawyer Trust of May 1992 v. Commissioner, T.C. Memo. 2014-59, at

*3-*4. In total, Fortrend paid the trust more than $32.4 million for the taxi

corporations, whose combined net book value was only about $25.3 million, and

about $23.4 million for the real estate corporations, whose combined net book

value was only about $16.9 million. E at *4-*5. At the time of the stock sale, all

four corporations were comfortably solvent: the two taxi corporations had about

$39.6 million in cash and about $14.3 million of tax liability, and the two real

estate corporations had about $27.5 million in cash and about $10.5 million of tax

liabilities. E By yearend Fortrend had caused the four corporations to make

numerous transfers that ultimately left them with a combined cash balance of

approximately $690,000, while their combined tax liability remained at about

$24.8 million. Il

As explained by the Court of Appeals for the First Circuit:

If the IRS has a fraudulent transfer claim against * * *[the

Fortrend acquisition vehicles], then the IRS is also a creditor of * * *

[the Fortrend acquisition vehicles] under the Massachusetts Uniform

Fraudulent Transfer Act. See id. [Mass. Gen. Laws ch. 109A] § 2

("creditor" is "person who has a claim"). And if it is a creditor of

* * * [the Fortrend acquisition vehicles], the IRS can recover not only

from * * * [the Fortrend acquisition vehicles themselves], but also

from parties who received fraudulent transfers from * * * [the

Fortrend acquisition vehicles]. * * *

- 66 [*66] Sawyer Trust of May 1992 v. Commissioner, 712 F.3d at 607-608.

On remand we found that the shareholder trust was liable as a transferee of a

transferee, but limited the amount of recovery to the premium (value received in

excess of the corporations' fair market value) because the trust was a good-faith

transferee.36 Sawyer Trust of May 1992 v. Commissioner, T.C. Memo. 2014-59.

Under the facts of Sawyer Trust of May 1992 v. Commissioner, at *9, the initial

fraudulent transfer occurred when Fortrend caused the companies to distribute its

cash to the Fortrend acquisition entities, the initial transferees.37 At the time of

these transfers, the IRS was already a creditor of the companies, and as a result of

36Unlike the taxpayer in Sawyer Trust of May 1992 v. Commissioner, T.C.

Memo. 2014-59, petitioner was not a good-faith transferee. See discussion supra

p. 48, sec. V. pt. B.2. Moreover, petitioner would not have benefited from goodfaith transferee status because he transferred an asset of negative value to Neches

Holdings. See TUFTA sec. 24.009(d)(1) ("Notwithstanding voidability of a

transfer * * * under this chapter, a good faith transferee * * * is entitled, at the

transferee's * * * election, to the extent of the value given the debtor for the

transfer * * * [to] a reduction in the amount of the liability on the judgment.").

370ur use of the words "initial" and "subsequent" does not signify a

temporal relationship. Rather, these words specify a relationship to the debtor-i.e., the initial transfer is a transfer by a debtor to a(n) (initial) transferee, and a

subsequent transfer is a transfer from a transferee (whether initial or subsequent)

to another (subsequent) transferee. In Sawyer Trust of May 1992, the debtors

were the acquired corporations. The distribution of cash from the debtor to

Fortrend/the Fortrend acquisition entities (initial transferees) was the initial

transfer. The transfer of the stock purchase price from Fortrend/the Fortrend

acquisition entities to the trust (subsequent transferee) was the subsequent transfer.

Note that the "subsequent transfer" occurred before the "initial transfer".

- 67 [*67] the transfers, became a creditor of the Fortrend acquisition entities as well.

The Court then found that the stock sale proceeds received by the trust was a

fraudulent transfer from the Fortrend acquisition entities because the following

factors were met: (1) Fortrend did not receive a reasonably equivalent value in

exchange for the transfer and (2) Fortrend intended to incur, believed, or

reasonably should have believed that it would incur, debts beyond its ability to pay

as they became due. E at *9-*16. In performing its analysis, the Court did not

distinguish between Fortrend and the Fortrend acquisition vehicles. Moreover, the

Court found transferee-of-transferee liability even though the IRS did not become

a creditor of the Fortrend acquisition entities until after the stock sale--i.e., upon

the later-occurring "initial transfer" of cash from the acquired corporations to the

Fortrend acquisition entities. This is because under UFTA sec. 4, a creditor's

claim can arise either "before or after the transfer was made". Cf. TUFTA sec.

24.005 (requiring the creditor's claim to arise "before or within a reasonable time

after the transfer was made").

Similarly, in this case, the initial transfer occurred when Neches distributed

approximately $5.5 million to MidCoast (via Neches Holdings) following the

stock sale. In each of these cash distributions, Neches received a demand note

from Neches Holdings in the same amount. Accordingly, these distributions may

- 68 [*68] be viewed as transfers of cash from Neches to Neches Holdings, followed by

subsequent transfers from Neches Holdings to MidCoast.

At the time of these transfers, the IRS was a creditor of Neches,38 Neches

was insolvent, and Neches did not receive any value in exchange.39 These

38The IRS generally becomes a creditor of a taxpayer as of the date the

obligation to pay the tax accrues. In this case, the IRS became a creditor of

Neches for the capital gain of Neches' assets at the time of the assets sale to

Martin--i.e., June 1, 2004.

In Zahra Spiritual Trust v. United States, 910 F.2d 240, 248 (5th Cir. 1990)

(quoting Frees v. Baker, 16 S.W. 900, 901 (Tex. 1891)), the Court of Appeals for

the Fifth Circuit explained:

The Texas courts have given a broad construction to the term creditor,

so that the [Texas Fraudulent Transfers] Act "protects the holders of

unliquidated unmatured contingent claims." See Burnett v. Chase Oil

& Gas, Inc., 700 S.W.2d 737, 743 (Tex. App.--Tyler 1985, no writ).

As the Burnett court put it, "[t]he existing creditors who may attack

the transfer need not have been the owners of a fully matured and

liquidated debt." Id

"The character of the claim, if it is just and lawful, is

immaterial. It need not be due; for, although the holder cannot

maintain an action until it is due, he nevertheless has an interest in the

property as a fund out of which the demand ought to be paid. . . . A

contingent claim is as fully protected as one that is absolute."

39The Neches Holdings demand notes were valueless because MidCoast and

Neches Holdings never intended to repay Neches. Shortly after the cash

distributions, Neches Holdings sold Neches to Wilder in exchange for Wilder's

assumption of the demand note obligations. On that very same day, Wilder

(continued...)

- 69 [*69] transfers were therefore fraudulent under TUFTA sec. 24.006(a), and, as a

result, the IRS became a creditor of Neches Holdings on August 31, 2004, by

virtue of its claim against Neches Holdings. See TUFTA sec. 24.002(4)

("'Creditor' means a person* * *who has a claim."). As a creditor to Neches

Holdings, the IRS can recover not only from Neches Holdings, but also from

parties who received fraudulent transfers from it.4°

A slight wrinkle is introduced because the stock purchase funds came from

a MidCoast account. We find that while the funds may have originated from

MidCoast's account, Neches Holdings actually paid for the Neches stock. On the

date of the stock sale, Neches Holdings borrowed $3,386,433 from MidCoast by

demand note. We further find that MidCoast contributed to Neches Holdings the

difference between the demand note amount and the $3,761,433 paid to petitioner

during the stock sale. Therefore, we must determine whether the $3,761,433 that

Neches Holdings transferred to petitioner constitutes a fraudulent transfer.

39(...continued)

declared a dividend of the demand notes. At that point, both the receivable and

obligation to pay were held by Wilder, which effectively canceled out the demand

notes.

4°See also TUFTA sec. 24.009(b)(2) (in addition to initial transferees,

liability may be imposed on "any subsequent transferee other than a good faith

transferee who took for value").

- 70 [*70]

a. Constructive Fraud

Under TUFTA's second fraud provision, a transfer "is fraudulent as to a

creditor, whether the creditor's claim arose before or within a reasonable time after

the transfer was made" if: (1) the debtor did not receive reasonably equivalent

value in exchange for the transfer and (2) the debtor "intended to incur, or

believed or reasonably should have believed that the debtor would incur, debts

beyond the debtor's ability to pay as they became due." TUFTA sec. 24.005(a)(2).

First, the IRS became a creditor of Neches Holdings (i.e., on August 31,

2004) within a reasonable time after its transfer to petitioner (i.e., on August 25,

2004). Second, Neches Holdings received an asset of negative value in exchange

for the transfer. Finally, Neches Holdings knew or should have known that its

purchase of Neches would cause it to incur debts beyond its ability to pay. Like

Fortrend in Sawyer Trust, Neches Holdings purchased Neches using

approximately $3.4 million in loan proceeds and $0.36 million contributed by

MidCoast. As a new entity formed solely to acquire Neches, Neches Holdings had

no other assets or income. Therefore, Neches Holdings could not have repaid the

$3.4 million loan and the $6.5 million in tax liabilities (with its $6.2 million in

cash) unless its tax avoidance strategy succeeded.

- 71 [*71] Moreover, Neches Holdings could not have reasonably expected its tax

avoidance strategy to succeed. First, Neches Holdings entered into these

transactions against the backdrop of Notice 2001-16, supra, which designated

these intermediary transactions as tax shelters.4¹ Second, Neches Holdings

purchased Neches with the sole purpose of offsetting its large tax liabilities with

acquired losses. "[T]he law is quite clear that transactions having no business

purpose other than avoiding taxes will not be respected." Sawyer Trust of May

1992 v. Commissioner, at *12-*13 (citing Gregory v. Helvering, 293 U.S. 465,

469-470 (1935)). Consequently, Neches Holdings should have known that by

purchasing Neches, it would incur debts beyond its ability to pay.

b. Actual Fraud

In addition to being constructively fraudulent, the transfer of the stock sale

proceeds from Neches Holdings to petitioner is fraudulent under TUFTA's actual

fraud provision as well. Under TUFTA sec. 24.005(a)(1), a transfer is fraudulent

as to a creditor if: (1) the creditor's claim arose before or within a reasonable time

4¹Mr. Wellington of MidCoast testified that MidCoast had developed a

number of talking points in response to certain proclamations by the IRS and the

Emerging Issues Task Force so that it could address the objections and concerns of

sellers, who were worried about violating the tax laws.

- 72 [*72] after the transfer was made; and (2) if the debtor made the transfer with

actual intent to hinder, delay, or defraud any creditor.

As established above, respondent's claim against Neches Holdings arose

shortly (and within a reasonable time) after it transferred the stock sale proceeds to

petitioner. In addition, we find that Neches Holdings' sole purpose in entering

into the stock sale and subsequent transactions was to profit by avoiding Federal

tax liability. Therefore, we find that Neches Holdings had actual intent to "hinder,

delay, or defraud" the IRS.

In conclusion, petitioner received a fraudulent transfer from Neches

Holdings of $3,761,433 and is therefore liable as a transferee of a transferee of

Neches.

VI.

Respondent's Collection Efforts

Petitioner argues that respondent may not collect Neches' unpaid tax

liabilities from petitioner because respondent failed to make reasonable collection

efforts. In Zadorkin v. Commissioner, T.C. Memo. 1985-137, 49 T.C.M. (CCH)

1022, 1028 (1985) (quoting Sharp v. Commissioner, 35 T.C. 1168, 1175 (1961)),

we held that "[b]ecause transferee liability under section 6901 is a secondary

liability, respondent must show that 'all reasonable efforts were made to collect

the tax liability from the transferor before proceeding against the transferee.'".

- 73 [*73] With respect to the pre-stock-sale transfers, the transferor is Neches. We

find that RO Young engaged in all reasonable efforts to collect from Neches. RO

Young filed Federal tax liens on Neches' assets in both Texas and Florida,

searched various databases for assets belonging to Neches, and levied on the few

assets that he had found. Moreover, petitioner does not argue that respondent's

collection efforts were unreasonable with respect to Neches.

With respect to the stock sale proceeds, the transferor is Neches Holdings.

"Where * * * the transferor is hopelessly insolvent, the creditor is not required to

take useless steps to collect from the transferor. The reasonableness of the

collection efforts depends upon the facts of the individual case." Ld In this case,

Neches Holdings was hopelessly insolvent after it distributed the cash it had

received from Neches to MidCoast. At that time, Neches Holdings owed

MidCoast approximately $3.4 million, it owed Neches approximately $5.5 million,

and as a new entity formed solely to acquire Neches (itself an insolvent company),

it had no other assets or income. Accordingly, we find that respondent acted

reasonably in declining to take useless steps to collect from Neches Holdings.

Petitioner argues that respondent may not collect from petitioner because he

did not attempt to collect from Mr. Stone (shareholder of Wilder), his entities (i.e.,

Wilder, BABE, Starwalker, and Korea Star), or his counterparties. Petitioner cites

- 74 [*74] no authority for his proposition that respondent had to pursue all potential

transferees. We have held:

It is well settled that a transferee is severally liable for the unpaid tax

of the transferor to the extent of the assets received and other

stockholders or transferees need not be joined. Phillips v.

Commissioner, 283 U.S. 589 [(1931)]. In the event that one

transferee is called upon to pay more than his pro rata share of the

tax, he is left to his rights of contribution from the other transferees.

Estate of Harrison v. Commissioner, 16 T.C. 727, 731 (1951) (construing

predecessor statute); see also Alexander v. Commissioner, 61 T.C. 278, 295

(1974) (holding that "[t]ransferee liability is several" under section 6901).

Because liability under section 6901 is several, respondent may proceed

against any or all transferees. Accordingly, respondent may seek to collect from

petitioner the lesser of: (1) the amount of fraudulent transfers under State law that

petitioner received, directly or indirectly, from Neches and (2) the amount of

Neches' deficiencies, penalties, and interest. See Kreps v. Commissioner, 42 T.C.

660, 670 (1964), aff'd, 351 F.2d 1 (2d Cir. 1965); Feldman v. Commissioner, T.C.

Memo. 2011-297, 102 T.C.M. (CCH) 612, 621 (2011) ("Transferee liability under

section 6901 includes related additions to tax, penalties, and interest owed by the

transferors."); see also Schussel v. Werfel, 758 F.3d 82 (1st Cir. 2014) (pertaining

to the calculation of prejudgment interest on transferee liability.)

- 75 [*75] In reaching our holdings, we have considered all arguments made, and, to

the extent not mentioned above, we conclude they are moot, irrelevant, or without

merit.

To reflect the foregoing,

Decision will be entered under

Rule155.