United States v. Brown

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,
v.
DOUGLAS E. BROWN, HANS H. No. 01-4229
KUHLEN, WELLSHIRE ( D.C. No. 2:95-CR-245-B)
SECURITIES (DEUTSCHLAND) (D. Utah)
GMBH, WELLSHIRE SECURITIES,
INC., WELLSHIRE SECURITIES
BAHAMAS, LTD., WELLSHIRE
SERVICES, INC., and BENETIX,
A.G.,

Defendants-Appellees,

STEVEN W. CALL,

Receiver-Appellee,

GROUP 2 CLAIMANTS,

Appellees.

ORDER
Filed November 4, 2003

Before MURPHY , McWILLIAMS , and HARTZ , Circuit Judges.

This matter is before the court on Appellees’ petition for rehearing en banc.

The members of the hearing panel have determined that it is appropriate to revise
section III(A)(2)(b)(ii) of the opinion. The panel therefore GRANTS rehearing

IN PART, WITHDRAWS the opinion filed on July 8, 2003, VACATES the

judgment, and substitutes the modified opinion attached to this order.

The petition for rehearing en banc was transmitted to all of the judges of

the court who are in regular active service. As no member of the panel and no

judge in regular active service on the court requested that the court be polled, the

petition is denied.

Entered for the Court
PATRICK FISHER, Clerk of Court

By:
Deputy Clerk

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 F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 4 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,
v. No. 01-4229
DOUGLAS E. BROWN, HANS H.
KUHLEN, WELLSHIRE
SECURITIES (DEUTSCHLAND)
GMBH, WELLSHIRE SECURITIES,
INC., WELLSHIRE SECURITIES
BAHAMAS, LTD., WELLSHIRE
SERVICES, INC., and BENETIX,
A.G.,

Defendants-Appellees,

STEVEN W. CALL,

Receiver-Appellee,

GROUP 2 CLAIMANTS,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. NO. 2:95-CR-245-B)

Joel McElvain, Attorney, Department of Justice, Washington, D.C. (Eileen J.
O’Connor, Assistant Attorney General, Thomas J. Clark, Attorney, Department of
Justice, Washington, D.C., with him on the briefs, Paul M. Warner, United States
Attorney, Salt Lake City, Utah, of counsel), for Plaintiff-Appellant.
Steven W. Call (Herschel J. Saperstein, Bruce L. Olson, and Steven H. Gunn,
with him on the brief), of Ray, Quinney & Nebeker, Salt Lake City, Utah, for
Receiver-Appellee.

Matthew C. Barneck (Diana G. Matkin, with him on the brief), of Richards,
Brandt, Miller & Nelson, Salt Lake City, Utah, for Appellees.

Before MURPHY , Circuit Judge, McWILLIAMS , Senior Circuit Judge , and
HARTZ, Circuit Judge.

HARTZ , Circuit Judge.

A number of German citizens were defrauded when they attempted to invest

in United States securities. Assets were obtained from the perpetrators of the

fraud to create a receivership estate to compensate the victims. The United States

has claimed that the estate is a Qualified Settlement Fund (QSF) that is liable for

income taxes on its earnings. The district court ruled that the fund did not satisfy

the criteria to be a QSF, and the United States appealed. We reverse.

I. BACKGROUND

Hans H. Kuhlen and Douglas E. Brown managed or controlled various

businesses (the businesses) that were involved in a scheme to market securities to

investors. The businesses contracted with hundreds of German citizens for the

purchase of securities in the United States. An FBI investigation produced

evidence that Brown, Kuhlen, and several of the businesses had wrongfully

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represented that the securities they offered were (1) regulated and insured by the

National Association of Securities Dealers and the Securities Investor Protection

Corporation, (2) freely transferable, and (3) traded on recognized exchanges. The

FBI also found evidence that some of the businesses were dealing in securities

without obtaining the appropriate broker/dealer registrations, were misleading

their clients as to the history of one of the businesses, and were falsely

representing one of the businesses as a “world-leading” investment bank.

The FBI obtained a search warrant for the premises of one of the

businesses, Wellshire Services, Inc. (Wellshire), and seized a number of stock

certificates. Wellshire then moved under Rule 41(e) of the Federal Rules of

Criminal Procedure for return of some of the seized property, including stock

certificates that belonged to German investors. The court initially allowed stock

certificates to be released to Wellshire upon proof that its customers were entitled

to possession. But the court halted release of the stock when it suspected that

Wellshire had fabricated claims and did not own or control as many shares of

stock as it had sold.

Brown, Kuhlen, and five of the businesses were later indicted for securities

fraud and related offenses. The indictment sought forfeiture of “any and all

property, real and personal, involved in the . . . offenses, and any and all property

traceable to such property.” Aplt. App. at 32. Both Brown and Wellshire entered

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into stipulations with the United States whereby they released their claims to

certain property and placed that property in a fund designed to provide restitution

to the defrauded investors. Two other businesses entered into similar stipulations:

Desert Mountain Properties, Inc. stipulated to the sale of a residence and its

furnishings; and the D. E. Brown Family Trust relinquished its claims to the

proceeds of a sale of stock seized by the United States. The proceeds of the sales

were added to the restitutionary fund.

To make a claim on the fund, a Wellshire customer needed to complete a

form that asked the customer to “[i]dentify each stock or security purchased, the

number of shares purchased, [the] purchase price per share, [the] date of

purchase, the amount . . . paid for the shares[,] and whether [the investor] . . .

[had] received the shares purchased.” Id. at 73. The form announced a deadline

for submitting claims.

The United States asked that a receiver be appointed “[b]ecause of the

complex nature of the interests involved” and the fact that “the interests of the

[investors could] potentially conflict with respect to some assets.” Id. at 78. The

district court granted the United States’ request, appointing Steven W. Call (the

Receiver). At the same time, the court identified the receivership estate (the

Estate) as “[a]ll property [then] held by the United States of America and/or its

agencies or employees in connection with the . . . case, including but not limited

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to the assets of Wellshire Securities and/or its principles [sic] or affiliated entities

which were seized.” Id. at 81. The court authorized the Receiver “to endorse,

sell and/or transfer all of the securities in his possession for the benefit of the

estate, and . . . to liquidate any securities belonging to the estate that are in the

possession of other brokers.” Id. at 94.

The Receiver proceeded to gather and liquidate the Estate’s assets, which

included not only cash, stocks, and real estate, but also art, wine, and furniture.

Ultimately, the Receiver was successful in converting most of the Estate’s assets

to cash. At one point the Estate’s value exceeded $10,000,000. Nevertheless, the

Receiver reported that “the total assets held in the . . . [E]state are worth less than

one-fourth of the total claims filed against the . . . [E]state.” Rec. Br. at 23.

Although some claimants suggested that the Receiver distribute the seized

stock certificates (or the proceeds of their sale) directly to the owners of each

particular certificate, the Receiver rejected this suggestion as contrary to the

court’s earlier order directing him “to sell and not return stock.” Aplt. App. at

108. Instead, the Receiver suggested that the claimants “share pro-ratably based

upon the amount of their allowed claim.” Id.

Almost two years after the Estate was established, the IRS submitted a

proof of claim stating that the Estate owed taxes in the amount of $1,288,932.05

(plus interest). The original proof of claim identified the Estate as a Designated

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Settlement Fund (DSF), but an amended version identified it as a Qualified

Settlement Fund (QSF). The Receiver objected to the proof of claim on the

ground that the Estate was not taxable as either a DSF or QSF.

The court then ordered appointment of a special master (the Master) to

recommend a final resolution of all claims asserted against the Estate, including

the tax claim. After briefing and argument the Master issued a report concluding

that the Estate was not a QSF and recommending denial of the tax claim. The

district court adopted the Master’s report and recommendation.

The United States appeals. Appellees are the Receiver and the Group 2

Claimants (Claimants), a set of claimants for whom the district court appointed

counsel. (The Group 1 Claimants, who had separate counsel, have settled and are

not parties on appeal.)

II. JURISDICTION

In the order being appealed, the district court addressed the IRS’s tax claim

without addressing the individual claims of the investors. We entered a show-

cause order directing the parties to file memoranda regarding the appealability of

the district court’s order, because only final orders are appealable as of right, and,

in general, an order is not final unless it disposes of all remaining claims, see

Ashley Creek Phosphate Co. v. Chevron USA, Inc., 315 F.3d 1245, 1263 (10th

Cir. 2003). In their memoranda the parties agreed that immediate appeal was

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available under the collateral order doctrine. See Cohen v. Beneficial Indus. Loan

Corp., 337 U.S. 541 (1949). The jurisdictional issue was then referred to the

merits panel. Before we heard oral argument, however, the parties asked the

district court to certify its order as final and appealable under Federal Rule of

Civil Procedure 54(b). The district court, by order dated May 17, 2002, issued the

requested certification.

On appeal neither party questions our jurisdiction. Nor do we. If the

district court’s original order was not a final order under the collateral order

doctrine, it became a final order when the district court properly certified it under

Rule 54(b). After obtaining certification under Rule 54(b), a party need not file a

second notice of appeal. “[W]e will deem the notice of appeal to ripen as of the

date of certification and will accept jurisdiction pursuant to the savings provision

of Fed. R. App. P. 4(a)(2).” Lewis v. B. F. Goodrich Co., 850 F.2d 641, 645

(10th Cir. 1988) (en banc). Our jurisdiction being secure, no further discussion is

necessary.

III. THE MERITS

The United States claims that the Estate is a taxable entity, subject to tax as

a QSF on any income generated by assets in the Estate. Appellees, on the other

hand, dispute that the Estate is a QSF, arguing, in essence, that the Estate’s assets

should be treated as if owned by the claimants to whom those assets will

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ultimately be distributed. Because those claimants are German citizens, a treaty

exempts them from United States taxes on capital gains and other investment

income. Thus, the stakes are high.

Treasury Regulation § 1.468B-1, entitled “Qualified settlement funds,” and

accompanying regulations (§§ 1.468B-2, -3, and -4) constitute an effort to deal

with the various tax questions that arise when an independent settlement fund is

created to pay a debtor’s liabilities. The proper approach to taxation of financial

transactions involving such a fund is not immediately apparent. The transactions

could be treated as if the assets still belonged to the person who contributed the

assets to the fund or as if the assets belonged to those to whom the assets would

ultimately be distributed, or the fund itself could be treated as a taxpayer that

owns the assets. Other questions that may arise include: When can a debtor who

contributes to the fund take a tax deduction for its contribution (assuming that the

contribution is otherwise deductible)—when the payment is made into the fund,

when a claimant receives payment, or at some other time? Or when does the

claimant recognize income? See generally Ellen K. Harrison & Gary B. Wilcox,

Settlement Fund Final Regs. Answer Many Questions, But Problems Still Exist, 78

J. Tax’n 342 (1993); Ellen K. Harrison, IRS Fills Void on Tax Treatment of

Settlement Funds With Generally Favorable Rules, 76 J. Tax’n 358 (1992).

In this case, treatment of the Estate as a QSF appears to provide no benefit

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to those who contributed to the Estate or those who will receive distributions from

it; only the IRS stands to gain. But often treatment of a settlement fund as a QSF

benefits a taxpayer. For example, one who contributes funds to a QSF may be

able to take a deduction that would otherwise not be available until the funds are

distributed to claimants. See § 1.468B-3(c). In the following discussion it will be

helpful to keep in mind that the QSF regulations were designed to cover a host of

circumstances, not just the specific, and rather unusual, circumstances presented

here.

Section 1.468B-1(c) defines a QSF as follows:

A fund, account, or trust satisfies the requirements of
this paragraph (c) if—

(1) It is established pursuant to an order of, or is
approved by, the United States, any state (including the
District of Columbia), territory, possession, or political
subdivision thereof, or any agency or instrumentality
(including a court of law) of any of the foregoing and is
subject to the continuing jurisdiction of that
governmental authority;

(2) It is established to resolve or satisfy one or more
contested or uncontested claims that have resulted or
may result from an event (or related series of events)
that has occurred and that has given rise to at least one
claim asserting liability. . . [a]rising out of a tort, breach
of contract, or violation of law; . . . and

(3) The fund, account, or trust is a trust under
applicable state law, or its assets are otherwise
segregated from other assets of the transferor (and
related persons).

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The United States contends that the Estate is a QSF within this definition because

(1) the Estate was established by a court order; (2) the purpose of the Estate is to

pay claims arising out of fraudulent transactions in violation of the securities

laws; and (3) the Estate’s assets are segregated from the assets of all other

persons. Appellees bear the burden of establishing the error in the IRS’s

determination of the tax due. See Dolese v. Comm’r, 811 F.2d 543, 546 (10th Cir.

1987).

Appellees mount numerous attacks (some by both Appellees and some by

only one) on the contention that the Estate should be treated as a QSF. First, they

argue that the Estate does not satisfy the regulation’s criteria for being a QSF.

Although they concede that the Estate satisfies the requirements of subparagraph

(3) of § 1.468B-1(c), they raise objections concerning the other subparagraphs.

With respect to subparagraph (1), they claim that the court order was inadequate

to establish a QSF because the order did not conform to a local court rule. And as

for subparagraph (2), they argue that the Estate does not “resolve or satisfy”

claims because it will not extinguish them, and that none of the liabilities at issue

here is the type of liability (what we will call a “predicate liability”) which a fund

must “resolve or satisfy” for it to be a QSF. Appellees further assert that the

Estate cannot be a QSF because it does not have a transferor, as implicitly

required by the regulations, and that a proposed Treasury regulation indicates that

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funds like the Estate are not meant to be treated as QSFs.

Next, Appellees challenge the validity of the regulations. They contend

that the statute authorizing the QSF regulations is an unconstitutional delegation

of legislative power, that the QSF regulations go beyond what is permitted by the

authorizing statute, and that the regulations cannot be applied here because such

application would violate a United States treaty with Germany. Finally, they

argue that the Estate should be taxed as a liquidating grantor trust and that its

capital gains should be offset by the investors’ losses.

We now address each of the arguments. “We review the district court’s

interpretation of federal statutes and regulations de novo . . . .” Seneca-Cayuga

Tribe of Okla. v. Nat’l Indian Gaming Comm’n, 327 F.3d 1019, 1030 (10th Cir.

2003) (internal citation omitted). The pertinent facts are undisputed.

A. Does the Estate Satisfy the QSF Criteria?

1. Subparagraph (1)

A fund satisfies subparagraph (1) of § 1.468B-1(c) if “[i]t is established

pursuant to an order of . . . a court of law . . . .” Appellees do not dispute that the

Estate was established by an order of the district court. But Claimants contend

that the order could not have created a QSF because it did not conform to District

of Utah Local Rule 67-1(b)(3), which states:

Order of the Court. A designated or qualified settlement
fund will be established by the clerk only on order of the

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 court on motion and stipulation by all parties or on
acceptance by the court of the terms of the settlement
agreement. The court reserves the authority to designate
its own outside fund administrator.

D. Utah Civ. R. 67-1(b)(3). They note that the Estate was not created as a QSF by

stipulation or settlement of all parties, as the local rule appears to require.

Although we doubt that a local court rule could alter the requirements for a

fund to be a QSF, we need not decide the matter. Rule 67-1(b)(3) is inapplicable

here. It is merely a provision within Local Rule 67, which governs the deposit,

receipt, and subsequent treatment of court registry funds, see D. Utah Civ. R. 67-

1, 1 as does Fed. R. Civ. P. 67. The assets of the Estate, however, were not

1
Local Rule 67-1 (a) & (b) state:

RECEIPT AND DEPOSIT OF REGISTRY FUNDS

(a) Court Orders Pursuant to Fed. R. Civ. P. 67. Any party
seeking to make a Rule 67 deposit, with the exception of criminal
cash bail, cost bonds, and civil garnishments, must make application
to the court for an order to invest the funds in accordance with the
following provisions of this rule.

(b) Provisions for Designated or Qualified Settlement Funds

(1) By Motion. Where the parties jointly seek to deposit funds into
the court's registry to establish a designated or qualified settlement
fund under 26 U.S.C. § 468B(d)(2), the parties must identify the
deposit as such in a joint motion and stipulation for an order to
deposit funds in the court's registry. Such motion also must
recommend to the court an outside fund administrator who will be
responsible for (i) obtaining the fund employer identification
(continued...)

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deposited into the district court’s registry, but were held by the United States.

2. Subparagraph (2)

The United States contends that the Estate satisfies subparagraph (2) of

§ 1.468B-1(c) because it was “established to resolve or satisfy one or more

contested or uncontested claims that have resulted or may result from an event (or

related series of events) that has occurred and that has given rise to at least one

claim asserting liability . . . [a]rising out of a tort, breach of contract, or violation

of law.” Treas. Reg. § 1.468B-1(c)(2). Appellees challenge that contention on

two grounds. One ground, supported by alternative arguments, is that the Estate

1
(...continued)
number, (ii) filing all fiduciary tax returns, (iii) paying all applicable
taxes, and (iv) otherwise coordinating with the fund depository to
ensure compliance with all IRS requirements for such funds.

(2) By Settlement Agreement. Where the parties enter into a
settlement agreement and jointly seek to deposit funds into the
court's registry to establish a designated or qualified settlement fund
under 26 U.S.C. § 468B(d)(2), the settlement agreement and
proposed order must (i) identify the funds as such, and (ii)
recommend to the court an outside fund administrator whose
responsibilities are set forth in subsection (b)(1) of this rule.

(3) Order of the Court. A designated or qualified settlement fund will
be established by the clerk only on order of the court on motion and
stipulation by all parties or on acceptance by the court of the terms of
the settlement agreement. The court reserves the authority to
designate its own outside fund administrator.

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cannot be a QSF because it does not extinguish the claims—the Estate has far too

little money to compensate the claimants fully and the claimants are not required

to release anyone from liability. The alternative arguments are (1) that one cannot

“resolve or satisfy” a claim without extinguishing it, and (2) that the liabilities at

issue are “for the provision of services or property,” and the regulations explicitly

require that a fund extinguish those liabilities if it is to be considered a QSF.

Their second ground is that the liabilities at issue here cannot be predicate

liabilities for a QSF, because they do not “[a]ris[e] out of a tort, breach of

contract, or [other] violation of law,” and are of a type explicitly excluded by the

regulation from being predicate liabilities. We now address their arguments.

a. Failure to Extinguish Liabilities

(i) “Resolve or Satisfy”

Claimants assert that the Estate cannot “resolve or satisfy” claims unless

the claims are extinguished, either by full payment or release. The United States

concedes that a claim cannot be “satisfied” unless it is extinguished and that

distributions from the Estate will neither fully pay the victims’ claims nor result

in releases from liability by the victims. It argues, however, that “resolve” in this

context means only “to reach a decision about.”

We take a different approach. Subparagraph (2) requires that a QSF be

“established to resolve or satisfy one or more . . . claims.” Treas. Reg. § 1.468B-

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1(c)(2). In our view, the words “established to” are the key. When we say that a

program has been “established to” do something, we do not necessarily mean that

the program will fully accomplish that task, or even that we expect the task to be

fully accomplished. We may be merely stating the aim, the direction, of the

program. One could say that the War on Poverty was established to eradicate

poverty or that the United Nations was established to end military conflict, even

though partial success would be considered a victory. More closely in point,

mediation programs, even settlement conferences, can be said to be “established

to settle disputes”; yet no one expects all disputes to be settled, and partial

resolution would be welcome.

Of course, an institution “established to” do something may invariably

accomplish that task. Courts are established to resolve disputes; and, for better or

worse, they do so. The point here is only that the phrase “established to resolve

or satisfy. . . claims” is ambiguous. It may mean that all claims are to be resolved

or satisfied; or it may mean only that the institution is directed toward that end,

and partial resolution or satisfaction, or even failure, is a potential result. To

determine the meaning of this ambiguous language, we look for clues elsewhere

in the regulations. See OXY USA, Inc. v. Babbitt, 268 F.3d 1001, 1005 (10th Cir.

2001) (en banc) (court deciphers the meaning of a particular statutory provision

by “considering the language and structure of the statute as a whole”).

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 One compelling clue comes from the section of the regulations dealing with

liabilities for the provision of services or property. The section’s general rule is

that such a liability cannot be the predicate liability for a QSF unless the fund

extinguishes the liability, although there is a limited exception for liabilities

under the Comprehensive Environmental Response, Compensation, and Liability

Act (CERCLA). The language is as follows:

Resolve or satisfy requirement—(1) Liabilities to
provide services or property. Except as otherwise
provided in . . . [subsection (2) below], a liability is not
described in paragraph (c)(2) of this section [the section
describing the resolve-or-satisfy requirement generally]
if it is a liability for the provision of services or
property, unless the transferor’s obligation to provide
services or property is extinguished by a transfer or
transfers to the fund, account, or trust.

(2) CERCLA liabilities. A transferor’s liability under
CERCLA to provide services or property is described in
paragraph (c)(2) of this section if following its transfer
to a fund, account or trust the transferor’s only
remaining liability to the Environmental Protection
Agency (if any) is a remote, future obligation to provide
services or property.

Treas. Reg. § 1.468B-1(f) (emphasis added). That the drafters chose specifically

to require extinguishment when the transferor has an obligation to provide

services or property suggests that extinguishment is not generally required.

Indeed, if we were to reach the opposite conclusion—that the phrase “resolve or

satisfy” creates a complete-extinguishment requirement for all predicate

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liabilities—the specific requirement would be rendered superfluous, a result to be

avoided, see OXY USA, 268 F.3d at 1006 (“We must avoid, whenever possible, a

statutory interpretation that would render superfluous other provisions in the same

enactment.” (internal quotation marks omitted)).

Claimants respond that because a fund does not need to extinguish

completely a transferor’s liability for the provision of services or property when

that liability arises under CERCLA, the drafters found it necessary to reiterate (in

the services-or-property provision) that complete extinguishment is generally

required. A dispositive problem with this theory, however, is that the purported

clarification comes before the exception has been announced. We cannot believe

that the drafters were so obtuse.

Moreover, there is a reason why the regulations distinguish between

obligations to pay money and obligations to provide services or property. As the

IRS explained when the final QSF regulations were promulgated, paragraph (f)(1)

was added to maintain consistency with the general rules set forth in 26 U.S.C.

(I.R.C.) § 461 regarding when an accrual-basis taxpayer can claim a deduction.

See Settlement Funds, 57 Fed. Reg. 60,983, 60,985 (Dec. 23, 1992). Under

§ 461(h)(2)(B) a liability of the taxpayer to provide property or services is not

incurred until “the taxpayer provides such property or services.” (So, for

example, a taxpayer that assumes in 1990 an obligation to remove a drilling

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platform in 1998 does not “incur” the $200,000 removal cost until the actual

removal in 1998, even if it prepaid most of the removal cost to a service company

in 1990. See Treas. Reg. § 1.461-4(d)(7) Ex. 1.)

Example 1 in the regulation also illustrates that extinguishment is not

generally required. “[E]xamples set forth in regulations remain persuasive

authority so long as they do not conflict with the regulations themselves.” Cook

v. Comm’r, 269 F.3d 854, 858 (7th Cir. 2001). The example states:

In a class action brought in a United States federal
district court, the court holds that the defendant,
Corporation X, violated certain securities laws and must
pay damages in the amount of $150 million. Pursuant to
an order of the court, Corporation X transfers $50
million in cash and transfers property with a fair market
value of $75 million to a state law trust. The trust will
liquidate the property and distribute the cash proceeds to
the plaintiffs in the class action. The trust is a qualified
settlement fund because it was established pursuant to
the order of a federal district court to resolve or satisfy
claims against Corporation X for securities law
violations that have occurred.

Treas. Reg. § 1.468B-1(k). Significantly, the trust was a QSF despite the deposit

of $25 million less than the court had awarded. Claimants seek to avoid the

import of this example by arguing that because the assets in the example were

transferred “[p]ursuant to an order of the court,” the defendant “satisfied or

discharged” the judgment and would have been insulated from actions to recover

the remaining $25 million under Fed. R. Civ. P. 60(b)(5). They suggest that the

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deficiency was attributable to a compromise in lieu of an appeal, or the

corporation’s lack of additional assets. Claimants’ argument, however, is founded

on pure speculation. Example 1 nowhere states that the court ordered the transfer

of only $125 million, that the parties compromised, or that Corporation X lacked

sufficient assets to satisfy the entire judgment. Nor can we see any reason for the

example to speak of a $125 million payment, rather than the full $150 million, if

the $125 million fully absolved the defendant of liability. We can only infer that

the drafters created the $25 million deficiency specifically to illustrate that a fund

can qualify as a QSF even if it does not completely extinguish a transferor’s

liability.

Reinforcing our conclusion further is a comparison of the QSF regulations

with the earlier statute creating the entity known as a Designated Settlement Fund

(DSF), an entity which we will have reason to discuss later in more detail. The

statute provides that to be a DSF, a fund must both have “the principal purpose of

resolving and satisfying . . . claims,” I.R.C. § 468B(d)(2)(D), and “extinguish[]

completely the taxpayer’s tort liability with respect to [those] claims,” id.

§ 468(d)(2)(A). If “extinguish completely” and “resolve and satisfy” were

synonymous, there would have been no need to include both phrases in the DSF

statute. And if “resolve and satisfy” does not necessarily mean “completely

extinguish” in the DSF statute, it is logical to conclude that “resolve or satisfy,” the

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phrase used in the QSF regulations, also stands for something less than complete

extinguishment.

In light of the services-or-property section, Example 1, and the DSF statute,

we hold that the QSF regulations do not create a complete-extinguishment

requirement. Thus, the Estate can still be a QSF even though the victims will not

be completely compensated for their injuries and their claims may therefore

survive.

(ii) Liability for the Provision of Services or Property

As previously noted, “a liability for the provision of services or property”

cannot be the predicate liability for a QSF “unless the transferor’s obligation to

provide services or property is extinguished by a transfer or transfers to the

[purported QSF].” Treas. Reg. § 1.468B-1(f)(1). The Receiver contends that this

provision “applies when the basis of liability underlying the claim arises from the

sale of property or services.” Rec. Br. at 34. Because the victims’ claims arise out

of the sale of securities and the provision of brokerage services, he reasons, they

would therefore come within the provision.

We disagree. Paragraph (f)(1) does not speak of the source of the liability.

Rather, it comes into play when the transferor has an “obligation to provide

services or property.” Perhaps there was at one time an obligation with respect to

some of the victims to provide them with the securities they had paid for, but that is

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not the obligation addressed by the Estate. After the plan to return securities to

Wellshire on behalf of the victims was terminated, the Estate was created to

compensate the victims for their financial losses. The obligations being satisfied

(at least in part) by the Estate were the obligations to refund the purchase price of

the securities. The Estate’s purpose was not to pay for services or property to be

provided to the victims. Therefore, paragraph (f)(1) is not applicable.

b. Predicate Liabilities

Appellees contend that the liabilities here do not “[a]ris[e] out of a tort,

breach of contract, or violation of law,” as required by Treas. Reg. § 1.468B-

1(c)(2), and are in fact liabilities excluded by § 1.468B-1(g).

(i) “Arising out of a tort, breach of contract, or
violation of law”

On the first point, Appellees appear to argue as follows: (1) the claims here

sound in restitution, since the sole purpose is to refund, to the extent possible, the

victims’ original investments; and (2) a cause of action for restitution does not

arise “out of a tort, breach of contract, or violation of law.” We are not persuaded.

We agree that the victims have a cause of action for restitution (often called “unjust

enrichment”). But even if liability for unjust enrichment does not come within the

language of the QSF regulations, an issue we need not address, the fact that the

victims have such claims is unimportant because a claim for unjust enrichment can

coexist with a claim sounding in tort, contract, or violation of law. See, e.g.,

-21-
Restatement (Third) of Restitution and Unjust Enrichment § 13 cmt. a (Tentative

Draft No. 1, 2001) (“In the case of a contractual transfer . . . , the consequences of

fraudulent inducement may be simultaneously a part of contract law and of the law

of restitution.”). Here, the fraudulent transactions give rise not only to claims for

unjust enrichment, but also to common-law claims in fraud and contract, as well as

claims for securities fraud. And for each of these claims a potential remedy is

refunding the amount of the original investment. See Dan B. Dobbs, Law of

Remedies § 9.1 (2d ed. 1993) (fraud); id. § 12.1(1) (contract); id. § 9.2(1)

(securities fraud). Thus, the victims’ “claims . . . result from . . . event[s] . . . that

ha[ve] given rise to . . . claim[s] asserting liability . . . [a]rising out of a tort, breach

of contract, or violation of law.” Treas. Reg. § 1.468B-1(c)(2).

(ii) Excluded Liabilities

As for Appellees’ claim that the QSF regulations explicitly exclude the

liabilities here from being the predicate for treating the Estate as a QSF, they rely

on the exclusions in Treas. Reg. § 1.468B-1(g)(2) & (g)(3).

Before addressing each exclusion, we reject the Receiver’s suggestion that

the United States waived its right to respond to these (and other) arguments when it

did not discuss them in its opening brief. These arguments do not relate to the

basis of the district court’s ruling; they raise potential alternative grounds for

affirming that ruling. When an appellee raises in its answer brief an alternative

-22-
ground for affirmance, the appellant is entitled to respond in its reply brief. See

Sadeghi v. INS, 40 F.3d 1139, 1143 (10th Cir. 1994).

Section 1.468B-1(g)(2) excludes “obligation[s] to refund the purchase price

of, or to repair or replace, products regularly sold in the ordinary course of the

transferor’s trade or business.” In our view, this provision does not apply here

because the word “products,” as used in the provision, refers to tangible goods, not

intangibles like investments in securities. This is one of the common usages of the

word. See, e.g., Restatement (Third) of Torts: Products Liability § 19(a) (1998)

(“A product is tangible personal property distributed commercially for use or

consumption.”); 15 U.S.C. § 2301(1) (Magnuson-Moss Warranty Act) (“The term

‘consumer product’ means any tangible personal property which is distributed in

commerce and which is normally used for personal, family, or household

purposes . . . .”). And this usage fits the context. Consider the three obligations

referenced in the provision. Certainly, businesses do not “repair” intangibles, and

an obligation to “replace” one is rare, if not nonexistent. To be sure, there are

occasions, as in this case, when a business can incur an obligation to refund the

purchase price of an intangible. But this provision was intended to prevent

taxpayers from taking advantage of favorable tax treatment of QSF’s when dealing

with “certain regularly recurring liabilities,” Settlement Funds, 57 Fed. Reg. 5399,

5401 (Feb. 14, 1992); and any enterprise that regularly incurs obligations to refund

-23-
the purchase price of intangibles (obligations that are most likely to result from

fraud or a statutory violation) is better referred to as a “racket” than by the

regulation’s terms “trade” or “business.”

If the intent were to include intangibles, we believe the drafters would have

used language specifically conveying that meaning. We note that in the

immediately preceding paragraph, the drafters used the word “property.” See

§ 1.468B-1(f)(1) (“Liabilities to provide services or property.”). Use of the word

“product” in paragraph (g) suggests a narrower focus. The liabilities here do not

arise out of the sale of tangible goods and are therefore not encompassed by this

provision.

In their petition for rehearing en banc, Appellees argue that certificated

securities are tangible. But the enterprises of Brown and Kuhlen were not in the

business of selling stock certificates; they were selling investments. We are

confident that § 1.468B-1(g)(2) does not apply to the circumstances of this case.

Cf. In re Oakley, 344 F.3d 709 (7th Cir. 2003) (currency is not “tangible property”

for purposes of Indiana’s debtor exemptions).

Turning to § 1.468B-1(g)(3), it excludes “obligation[s] of the transferor to

make payments to its general trade creditors or debtholders that relate[] to a title 11

or similar case.” As the United States acknowledges, a receivership is a “similar

case.” See I.R.C. § 368(a)(3)(A)(ii). Nevertheless, the victims are neither general

-24-
trade creditors nor debtholders of any of the perpetrators of the fraud or their

enterprises.

Addressing first the term “general trade creditors,” the word “general,” when

used to modify “creditor,” simply means “unsecured.” See Black’s Law Dictionary

375 (7th ed.1999). And the term “trade creditors” refers to those to whom a debt is

owed for the provision of goods (or perhaps goods or services) used in the conduct

of one’s business. See, e.g., David W. Pearce, The Dictionary of Modern

Economics 430 (1981) (“Trade Credit” is “[c]redit extended by a trader or producer

to his customers through terms of sale which allow payment at some time after the

actual transfer of the goods”); 12 C.F.R. Pt. 202, Supp. I, ¶ 9(a)(3) (Federal

Reserve Board official staff interpretation of Regulation B, relating to the Equal

Credit Opportunity Act, states: “The term trade credit generally is limited to a

financing arrangement that involves a buyer and a seller—such as a supplier who

finances the sale of equipment, supplies, or inventory; . . . .”); R. J. Shock &

Robert L. Shock, The Wall Street Dictionary 428 (1990) (Trade credit is “[a]n

account that a supplier keeps for the company buying its goods or services”); In re

Stratford of Texas, Inc., 635 F.2d 365, 367 (5th Cir. 1981) (“their indebtedness was

to trade creditors, i.e., suppliers of goods and services for these operations”).

Thus, the victims are not “general trade creditors.”

As for the term “debtholders,” it does not refer to just any creditors owed a

-25-
debt, but only to those who hold a debt instrument. See Gretchen Morgenson &

Campbell R. Harvey, The New York Times Dictionary of Money and Investing 74

(2002). The victims are not debtholders.

Our rejection of an overly expansive interpretation of the terms “general

trade creditors” and “debtholders” is supported by the statement in the final

regulations that liabilities are not excluded from the coverage of the QSF

regulations just because they are associated with a title 11 or similar case:

The final regulations exclude claims of general trade
creditors and debtholders that relate to a title 11 or similar
case, or to a workout. However, qualified settlement fund
treatment remains available for other liabilities such as
tort liabilities irrespective of whether the liability, for
example, relates to a title 11 case.

Settlement Funds, 57 Fed. Reg. 60,983, 60,984 (Dec. 23, 1992). In sum, Appellees

cannot find relief in § 1.468B-1(g)(3).

3. Other Arguments that the Fund is not a QSF

a. Absence of a Transferor

Appellees claim that the Estate is not a QSF because those who were the

sources of the assets in the Estate are not “transferors” within the meaning of the

regulations. “A ‘transferor’ is a person that transfers (or on behalf of whom an

insurer or other person transfers) money or property to a qualified settlement fund

to resolve or satisfy claims described in paragraph (c)(2) of this section against that

person.” Treas. Reg. § 1.468B-1(d)(1). The Receiver argues that a transferor must

-26-
own the assets that it deposits in the fund, and that such was not the case here

because the assets transferred were actually owned by the investors. Claimants

appear to argue additionally that a transferor must either (1) claim a deduction

arising from the transfer or (2) be identified by the IRS as entitled to one, and that

neither condition was satisfied here. As we proceed to explain, however, the

requirements that Appellees would impose cannot be found in the QSF regulations,

nor can they be inferred from the operation of the regulations.

(i) Ownership

Under the regulations, assets transferred to a fund for the purpose of

resolving or satisfying claims are “treated as owned by the transferor” until the

fund meets all the requirements for QSF treatment. Treas. Reg. § 1.468B-1(j)(1).

From this provision, the Receiver infers that a person who does not own the

transferred assets is not a “transferor.” We need not, however, determine whether

those who transferred assets to the Estate were actual owners of any of the assets

placed in the Estate because the Receiver’s inference is incorrect.

The tax laws do not require a person to be a true owner in order to be treated

as one. For example, embezzled funds are generally included as gross income, see

James v. United States, 366 U.S. 213, 215, 222 (1961); see also Treas. Reg. § 1.61-

14(a) (“Illegal gains constitute gross income.”), despite the fact that the embezzler

lacks title to the funds and his victims are entitled to restitution, see James, 366

-27-
U.S. at 216. One cannot conclude that just because the transferor may be treated as

the owner for tax purposes, the transferor must in fact be the actual owner.

(ii) Deductibility

Claimants assert that one of the purposes of the QSF regulations is to enable

a taxpayer who transfers property to a QSF to take a tax deduction, and therefore a

QSF cannot be established until the person entitled to a deduction has been

identified. This argument ignores, however, that there are situations in which no

deduction is available. A transferor who is an accrual-basis taxpayer may claim a

deduction if (1) economic performance has occurred, see I.R.C. § 461(h)(2), and

(2) the transferred funds are a deductible expense under another provision of the

Tax Code, see id. § 161; Treas. Reg. § 1.446-1(c)(1)(ii)(A). If the expense itself is

not deductible, the transferor cannot claim a deduction even if, by transferring

assets to the QSF, it has economically performed. Moreover, the transferor may be

a tax-exempt organization, which, of course, takes no deductions. Thus, the

creation of a QSF is not dependent on there being an identified taxpayer who can

take a tax deduction for transfers to the QSF. The IRS’s alleged failure to identify

a transferor entitled to claim a deduction does not prevent the Estate from meeting

the QSF requirements.

b. The Proposed Regulation

For their final assault on the characterization of the Estate as a QSF,

-28-
Appellees rely on a proposed regulation. In February 1999 the IRS issued a notice

that it was considering a regulation that would create a new entity, the Disputed

Ownership Fund (DOF). See Escrow Funds and Other Similar Funds, 64 Fed. Reg.

4801, 4810 (proposed Feb. 1, 1999) (to be codified at 26 C.F.R. pt. 1). According

to Claimants, the Estate satisfies the proposed requirements for a DOF. They

would have us conclude that the apparent need for additional regulations implies

that the QSF regulations do not cover entities described in the DOF regulation.

This argument is defeated by the language of the proposed regulation. The

proposed DOF regulation explicitly recognizes potential overlap with the QSF

regulations by stating that a fund can be a DOF only if it is not a QSF. Id. The

existence of the proposed regulation, therefore, does not in any way alter the

method of determining whether a fund is a QSF.

B. Validity of the QSF Regulations

Appellees contend that even if the Estate satisfies all the requirements to be a

QSF, it still should not be treated as one. They claim that (1) the statutory

authorization for the QSF regulations was an unconstitutional delegation of

authority, (2) the regulations violate the statutory authorization, and (3) application

of the regulations in this case would violate a treaty with Germany. We reject each

argument.

1. Unconstitutional Delegation

-29-
 Claimants argue that I.R.C. § 468B(g), the source of Treasury authority to

issue the QSF regulations, is an unconstitutional delegation of legislative power.

To understand the issue, we must examine the history of this provision.

Section 468B(g) is a 1988 amendment to the 1986 statute that created a new

entity called the Designated Settlement Fund (DSF). I.R.C. § 468B. In essence,

the statute provides that a fund is a DSF if (1) it has the principal purpose of

resolving and satisfying claims against the taxpayer, (2) the claims arise out of

personal injury, death, or property damage, (3) it is established pursuant to court

order, (4) it is funded entirely by qualified payments, (5) it is administered by

individuals unrelated to the taxpayer, (6) it completely extinguishes the liabilities

involved, (7) its transferor has elected DSF treatment, and (8) neither its transferor

nor related parties hold beneficial interests in the fund’s income or corpus. I.R.C.

§ 468B(d)(2)(A)-(F). A DSF is subject to taxation at the maximum rate applicable

to trusts, and the tax is directly imposed on the fund itself, not on its transferors or

beneficiaries. Id. § 468B(b)(1). Under the DSF rules, a person “economically

performs” by making a “qualified” payment to the DSF. Id. § 468B(a). Thus, the

DSF’s transferor can immediately claim a deduction for the amount contributed and

does not need to wait until the funds are distributed to the beneficiaries.

Because DSF treatment is elective and the statute’s requirements are

relatively strict, many settlement funds do not qualify as DSFs. Congress addressed

-30-
taxation of these other settlement funds in 1988 when it added the challenged

subsection to the DSF statute. That subsection reads:

Nothing in any provision of law shall be construed as
providing that an escrow account, settlement fund, or
similar fund is not subject to current income tax. The
Secretary [of the Treasury] shall prescribe regulations
providing for the taxation of any such account or fund
whether as a grantor trust or otherwise.

Id. § 468B(g).

Under current Supreme Court doctrine, § 468B(g) does not delegate authority

unconstitutionally. The nondelegation doctrine provides “that Congress may not

constitutionally delegate its legislative power to another branch of Government.”

Touby v. United States, 500 U.S. 160, 165 (1991). The doctrine derives from

Article I, § 1 of the Constitution, which states that “[a]ll legislative Powers herein

granted shall be vested in a Congress of the United States.” The nondelegation

doctrine does not, however, prohibit all delegation of authority. Congress may

obtain the assistance of the other branches so long as it provides an “intelligible

principle” to guide the exercise of the delegated authority. Mistretta v.

United States, 488 U.S. 361, 372 (1989) (internal quotation marks deleted)

(upholding power of Sentencing Commission). The Supreme Court has not been

reluctant to find such a principle. See id. at 373-74 (“[W]e have upheld . . .

Congress’ ability to delegate power . . . to determine excessive profits[,] . . . to fix

commodity prices that would be fair and equitable[,] . . . to determine just and

-31-
reasonable [utility] rates[,] . . . [and] to regulate public broadcast licensing ‘as

public interest, convenience, or necessity’ require.” (internal citations omitted)).

Indeed, it is enough if Congress “clearly delineates the general policy, the public

agency which is to apply it, and the boundaries of th[e] delegated authority.” Id. at

372-73 (internal quotation marks omitted). The Court has invalidated statutes

under the nondelegation doctrine only twice, both times in 1935. See A.L.A.

Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Panama Refining

Co. v. Ryan, 293 U.S. 388 (1935).

We find no unconstitutional delegation here. In § 468B(g) Congress (1)

expressed its general policy to permit taxation of settlement funds not then taxed

under the DSF regulations, (2) expressly directed the Secretary of the Treasury to

promulgate regulations, and (3) limited the exercise of the Secretary’s authority to

“escrow account[s], settlement fund[s], . . . [and] similar fund[s].” I.R.C.

§ 468B(g). Also, implicit in the delegation of authority was that the regulations

would “fit” within the rest of the tax laws, so that similar cases would be treated

similarly and opportunities for manipulation would be minimized. The delegation

of authority in § 468B(g) was not out of line with other delegations upheld by the

Supreme Court. Indeed, the Court has “‘almost never felt qualified to second-guess

Congress regarding the permissible degree of policy judgment that can be left to

those executing or applying the law.’” Whitman v. Am. Trucking Ass’ns, Inc., 531

-32-
U.S. 457, 474-75 (2001) (quoting Mistretta, 488 U.S. at 416 (Scalia, J.,

dissenting)).

2. Misuse of Delegated Power

Both Appellees argue that the Secretary of the Treasury exceeded his

authority under I.R.C. § 468B(g) because the QSF regulations issued under that

authority rendered other parts of the original statute obsolete. They point out that

under the statute, DSF status is elective, meaning that a fund otherwise meeting the

DSF requirements is not a DSF unless the taxpayer elects DSF treatment. With the

addition of the QSF regulations, however, a fund that has not elected DSF status

but otherwise meets the DSF requirements is a QSF, and is taxed in exactly the

same manner as a DSF.

This argument, however, ignores the scope of the authority granted: “The

Secretary shall prescribe regulations providing for the taxation of any such account

or fund whether as a grantor trust or otherwise.” I.R.C. § 468B(g). The statute

leaves it open to the Secretary of the Treasury to determine the proper taxation of

settlement funds and the like. There is no proviso that taxation must be subject to

an election by the potential taxpayer, any more than there is a proviso that some

other DSF requirement be retained. The regulation did not provide for electivity

because that would result in undesirable complexity and inconsistency of tax

treatment of similar funds, claimants, and transferors. Settlement Funds, 57 Fed.

-33-
Reg. 60,983, 60,984 (Dec. 23, 1992). In our view, the QSF regulations are within

the delegation of authority.

3. Treaty With Germany

Appellees argue that a treaty between the United States and Germany

precludes taxation of the Estate because German investors are the Estate’s

beneficial owners and the treaty generally exempts German investors in

United States securities from taxation on interest income and capital gains derived

from those securities. The argument is flawed because our tax laws distinguish

between taxable entities, like QSFs, and their beneficial owners.

In Maximov v. United States, 373 U.S. 49 (1963), the Supreme Court

examined the taxation of an American trust whose only beneficiaries were British

citizens exempt by treaty from United States taxation. Id. at 50, 52. The

beneficiaries asked that the trust’s gains be exempted from taxation because only

the exempt beneficiaries would experience the economic burden of the tax and such

a result would undermine the treaty’s overriding purpose. Id. at 52. The Court

found that the treaty exempted only United Kingdom “residents,” and that the trust

itself was not a United Kingdom “resident.” Id. at 52-53. It declined to extend

treaty rights to the trust, stating, “Mindful that it is a treaty we are construing, and

giving the [treaty] all proper effect, we cannot, and do not, either read its language

or conceive its purpose as encompassing, much less compelling, so significant a

-34-
deviation from normal word use or domestic tax concepts.” Id. at 52.

Like the treaty at issue in Maximov, the treaty at issue here exempts foreign

“residents” from certain United States taxes. See Convention for the Avoidance of

Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on

Income and Capital and to Certain Other Taxes, August 29, 1989, U.S.-F.R.G., S.

Treaty Doc. No. 101-10 (1991) (the Treaty). “[A]ny entity that is treated as a body

corporate for tax purposes” is a “person,” id. at Art. 3, cl. 1(d)-(e), and therefore

can be a “resident,” id. at Art. 4, cl. 1. The Estate is a “person” because, as a QSF,

it is treated as a corporation with respect to when and how it files its income tax

returns. See Treas. Reg. § 1.468B-2(k). But the Estate is not a German “resident”

because under the Treaty a person is a resident of a foreign state only when “under

the laws of that State, [that person] is liable to tax therein by reason of his

domicile, residence, place of management, place of incorporation, or any other

criterion of a similar nature . . . .” Treaty, Art. 4, cl. 1. Neither Appellee has

argued that under the laws of Germany the Estate owes tax “by reason of [its]

domicile” or otherwise. Under the laws of the United States, however, a QSF is “a

United States person and is subject to tax on its modified gross income.” Treas.

Reg. § 1.468B-2(a) (emphasis added). Thus, the Estate is a resident of the

United States, not a resident of Germany. As such, the Estate is not entitled to

relief from United States taxes under the Treaty. Accordingly, we reject Appellees’

-35-
argument that the Treaty exempts the Estate from taxation.

C. Taxation as a Grantor Trust

The Receiver argues that the Estate is a liquidating grantor trust and should

be taxed under the rules applicable to such an entity, not under the QSF regulations.

The Estate may in fact be a liquidating grantor trust. See Treas. Reg. § 301.7701-

4(d) (“An organization . . . [is] a liquidating trust if it is organized for the primary

purpose of liquidating and distributing the assets transferred to it, and if its

activities are all reasonably necessary to, and consistent with, the accomplishment

of that purpose.”). Whether it is such an entity, however, is irrelevant because

under the regulations a QSF that “could be classified as a trust within the meaning

of [Treas. Reg.] § 301.7701-4 [the section classifying organizations as trusts for

federal tax purposes] . . . [,] is classified as a qualified settlement fund for all

purposes of the Internal Revenue Code.” Treas. Reg. § 1.468B-1(b) (emphasis

added).

D. Offsetting

The Receiver’s final argument is that even if the Estate qualifies as a QSF, it

does not have taxable gain because the investors’ losses of more than $40 million

offset any gains that the Estate may have enjoyed. It is not clear that this issue was

raised below. In any event, the argument fails because the Estate’s gains or losses

are not determined with reference to the beneficiaries’ gains and losses. The

-36-
Estate’s gain or loss with respect to a particular asset is the difference between the

value of the asset when the Estate received it and the value of the asset when the

Estate distributed or sold it. See Treas. Reg. § 1.468B-2(b),(e),(f). We therefore

reject the Receiver’s offsetting-loss theory.

IV. CONCLUSION

We REVERSE the district court’s determination that the Estate is not a QSF.

We REMAND for proceedings consistent with this opinion to determine the

amount of income tax owed by the Estate as a QSF.

-37-