T.C. Memo. 2003-150
UNITED STATES TAX COURT
RIVER CITY RANCHES #1 LTD., LEON SHEPARD,
TAX MATTERS PARTNER,
RIVER CITY RANCHES #2 LTD., LEON SHEPARD,
TAX MATTERS PARTNER,
RIVER CITY RANCHES #3 LTD., LEON SHEPARD,
TAX MATTERS PARTNER,
RIVER CITY RANCHES #4 LTD., LEON SHEPARD,
TAX MATTERS PARTNER,
RIVER CITY RANCHES #5 LTD., LEON SHEPARD,
TAX MATTERS PARTNER,
RIVER CITY RANCHES #6 LTD., LEON SHEPARD,
TAX MATTERS PARTNER,
ET AL.,1 Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket Nos. 787-91, 4876-94, Filed May 23, 2003.
9550-94, 9552-94,
9554-94, 13595-94,
13597-94, 13599-94,
382-95, 383-95,
1
The Appendix sets forth, for each of these consolidated
cases, the docket number, partnership, and tax matters partner.
By orders issued from June 22, 2000, through May 15, 2001, the
Court removed Walter J. Hoyt III (Jay Hoyt), as tax matters
partner in each of the consolidated cases. In those orders, the
Court appointed a successor tax matters partner in each case.
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385-95, 386-95,
14718-95, 14719-95,
14720-95, 14722-95,
14724-95, 21461-95,
5196-96, 5197-96,
5198-96, 5238-96,
5239-96, 5240-96,
5241-96, 9779-96,
9780-96, 9781-96,
14038-96, 21774-96,
3304-97, 3305-97,
3306-97, 3311-97,
3749-97, 15747-98,
15748-98, 15749-98,
15750-98, 15751-98,
15752-98, 15753-98,
15754-98, 19106-98,
13250-99, 13251-99,
13256-99, 13257-99,
13258-99, 13259-99,
13260-99, 13261-99,
13262-99, 16557-99,
16563-99, 16568-99,
16570-99, 16572-99,
16574-99, 16578-99,
16581-99, 17125-99.
Montgomery W. Cobb, for petitioners.
Terri Ann Merriam and Wendy S. Pearson, for participating
partners in docket Nos. 9554-94, 13599-94, 383-95, and 16578-99.
Thomas A. Dombrowski, Catherine A. Caballero, Alan E.
Staines, Thomas N. Tomashek, Dean H. Wakayama, and Nhi Luu, for
respondent.
Contents
FINDINGS OF FACT . . . . . . . . . . . . . . . . . . . . . . . 7
A. Overview of the Hoyt Operations . . . . . . . . . . . . . 7
B. Formation and Operation of the Hoyt Sheep Partnerships . . 9
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C. Respondent’s Examination Efforts and Enforcement Actions
. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
D. Governmental Investigations of Jay Hoyt . . . . . . . . 25
E. Certain Agreements Extending the Period of Limitations That
Jay Hoyt and the IRS Executed . . . . . . . . . . . . . 30
OPINION . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Issue 1. Entitlement to Partnership Level Theft Loss Deductions
. . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
A. The Parties’ Arguments . . . . . . . . . . . . . . . . . 32
1. Petitioners’ Arguments . . . . . . . . . . . . . . 32
2. Respondent’s Arguments . . . . . . . . . . . . . . 34
B. Discussion of Applicable Law . . . . . . . . . . . . . 35
1. Section 165 Theft Loss . . . . . . . . . . . . . . 35
2. Estoppel Principles . . . . . . . . . . . . . . . . 37
a. Equitable Estoppel . . . . . . . . . . . . . 37
b. Collateral Estoppel . . . . . . . . . . . . 39
c. Judicial Estoppel . . . . . . . . . . . . . 41
C. Discussion of Partnership Level Theft Loss Deductions . 43
1. Determination of Whether the Sheep Partnerships Were
Victims of Theft . . . . . . . . . . . . . . . . . 43
a. The Occurrence of a Theft . . . . . . . . . 43
(i) Jay Hoyt’s Conviction of Federal Crimes
. . . . . . . . . . . . . . . . . . 45
(ii) Petitioners’ Claim That a Theft From the
Partners is a Theft From the
Partnerships . . . . . . . . . . . . 51
(iii) Petitioners’ Claim That a Theft Occurred
Under State Law . . . . . . . . . . 55
(iv) Analysis of Case Law Cited by
Petitioners . . . . . . . . . . . . 61
b. The Year of Discovery Requirement . . . . . 65
(i) Application of Equitable Estoppel . 67
(ii) Application of the Rod Warren Ink Case
. . . . . . . . . . . . . . . . . . 72
(iii) Petitioners’ Year of Discovery Claim
. . . . . . . . . . . . . . . . . . 76
c. The Remaining Elements of a Theft Loss . . . 76
2. Application of Collateral and Judicial Estoppel . . 77
a. Collateral Estoppel . . . . . . . . . . . . 77
b. Judicial Estoppel . . . . . . . . . . . . . 80
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D. Conclusion . . . . . . . . . . . . . . . . . . . . . . . 82
Issue 2. Expiration of the Period of Limitations . . . . . . 82
A. The Parties’ Arguments . . . . . . . . . . . . . . . . . 82
1. Petitioners’ Arguments . . . . . . . . . . . . . . 82
2. Respondent’s Arguments . . . . . . . . . . . . . . 85
B. Discussion of Applicable Law . . . . . . . . . . . . . . 87
C. Determination as to Whether the Applicable Periods of
Limitations on Assessment Have Expired . . . . . . . . . 91
D. Conclusion . . . . . . . . . . . . . . . . . . . . . . . 101
Issue 3. Whether Some Partnerships’ Purported Purchases of
Breeding Sheep Constitute Either Valuation Overstatements
for Purposes of Section 6621(c)(3)(A)(i) or Sham and
Fraudulent Transactions for Purposes of Section
6621(c)(3)(A)(v) . . . . . . . . . . . . . . . . . . . . 101
A. The Parties’ Arguments . . . . . . . . . . . . . . . . . 101
1. Petitioners’ Arguments . . . . . . . . . . . . . . 101
2. Respondent’s Arguments . . . . . . . . . . . . . . 104
B. Section 6621(c) . . . . . . . . . . . . . . . . . . . . 106
C. The Tax Court’s Jurisdiction . . . . . . . . . . . . . . 107
APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . 110
MEMORANDUM FINDINGS OF FACT AND OPINION
DAWSON, Judge: These consolidated cases were assigned to
Special Trial Judge Stanley J. Goldberg, pursuant to Rules 180,
181, and 183. All Rule references are to the Tax Court Rules of
Practice and Procedure. Section references are to the Internal
Revenue Code in effect for the years at issue. The Court agrees
with and adopts the opinion of the Special Trial Judge, which is
set forth below.
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OPINION OF THE SPECIAL TRIAL JUDGE
GOLDBERG, Special Trial Judge: Respondent issued a notice
of final partnership administrative adjustment (FPAA) to each
partnership involved in these consolidated cases determining
adjustments for the taxable years at issue.2 From 1981 through
1998, Walter J. Hoyt III (Jay Hoyt) promoted these nine sheep
breeding partnerships to numerous investors and managed
partnership operations. For convenience, these partnerships are
hereinafter sometimes referred to as the Hoyt sheep partnerships
and these consolidated cases are referred to in the singular
(i.e., instant case). In addition, the individual partners in
the sheep partnerships are collectively referred to as sheep
partners.
On June 22, 1999, the Court issued its opinion in River City
2
The years at issue for River City Ranches #1 are 1986 and
its years ended Sept. 30, 1991 through 1996. The years at issue
for River City Ranches #2 are 1986 and 1987, its year ended Sept.
30, 1991, and its years ended Sept. 30, 1993 through 1996. The
years at issue for River City Ranches #3 are 1986 and 1987, its
years ended Sept. 30, 1989 through 1991, and its years ended
Sept. 30, 1993 through 1996. The years at issue for River City
Ranches #4 are 1984 and 1986, and its years ended Sept. 30, 1992
through 1996. The years at issue for River City Ranches #5 are
1986, 1987 and 1988, and its years ended Sept. 30, 1989 through
1996. The years at issue for River City Ranches #6 are 1986 and
its years ended Sept. 30, 1992 through 1996. The years at issue
for River City Ranches 1985-2/River City Ranches #7 are 1987 and
1988, and its years ended Sept. 30, 1989 through 1996. (In 1991,
River City Ranches 1985-2 became known as River City Ranches #7.)
The years at issue for Ovine Genetic Technology Syndicate 1987-1
are its years ended Sept. 30, 1990 through 1996. The years at
issue for Ovine Genetic Technology 1990 (OGT 90) are 1992, 1993,
1994, 1995, and 1996.
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Ranches #4, J.V. v. Commissioner, T.C. Memo. 1999-209, affd. 23
Fed. Appx. 744 (9th Cir. 2001), a test case in which the Tax
Court upheld respondent’s disallowance of all deductions that
three Hoyt sheep partnerships claimed for taxable years not at
issue in the instant cases.3
After concessions,4 the primary issues for decision in the
instant cases (which petitioners raised in amended petitions)
are: (1) Whether the nine Hoyt sheep partnerships are entitled
to theft loss deductions under section 165 for each of the years
at issue equal to the total cash payments made by the partners in
each such year to the partnerships; (2) whether the period of
limitations provided under section 6229 expired prior to the time
that respondent issued FPAAs to some partnerships for certain
taxable years; and (3) whether purported purchases of breeding
sheep that some partnerships reported for pre-1989 taxable years
constitute either (a) “valuation overstatement” as defined in
3
River City Ranches #4, River City Ranches #6, and OGT 90
were the partnerships at issue in this test case. The taxable
years decided were: For River City Ranches #4, 1987 and 1988,
and its years ended Sept. 30, 1989 through 1991; and for River
City Ranches #6, 1987 and 1988, and its years ended Sept. 30,
1989 through 1991. For OGT 90 the year decided was 1991.
4
The parties have resolved all of the adjustments in each
notice of final partnership administrative adjustment issued to
each of the nine sheep partnerships. Among other things,
petitioners now agree that the sheep partnerships did not acquire
the benefits and burdens of ownership of any sheep and that the
promissory note each partnership issued in connection with its
purported acquisition of sheep is not a valid indebtedness.
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section 6621(c)(3)(A)(i), or (b) “sham and fraudulent
transaction” as defined in section 6621(c)(3)(A)(v).
FINDINGS OF FACT
Some of the facts and certain documents have been stipulated
for trial pursuant to Rule 91 and are found accordingly. The
Court incorporates the parties’ stipulations in this opinion by
reference.
The parties have stipulated that at the time the respective
petitions herein were filed, each of the nine Hoyt sheep
partnerships maintained its principal place of business in Burns,
Oregon. However, the record reflects that the partnerships were
operated from a Hoyt organization office located in Elk Grove,
California. Further, each sheep partnership, with the exception
of River City Ranches 85-2, was formed under and governed by
California law. River City Ranches 85-2 was a Nevada general
partnership and in 1991 became known as River City Ranches #7
(RCR #7).
A. Overview of the Hoyt Operations
Jay Hoyt’s father was a prominent breeder of Shorthorn
cattle, one of the three major breeds of cattle in the United
States. In order to expand his business and attract investors,
the father had started organizing and promoting cattle breeding
partnerships by the late 1960s. Before and after the father’s
death in early 1972, Jay Hoyt and other members of the Hoyt
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family were extensively involved in organizing and operating
numerous cattle breeding partnerships. From about 1971 through
1998, Jay Hoyt organized, promoted to thousands of investors, and
operated as a general partner more than 100 cattle breeding
partnerships. For convenience, all or some of the cattle
breeding partnerships hereinafter are sometimes referred to as
the Hoyt cattle partnerships or cattle partnerships.5
Before 1971, the Hoyt family for many years resided in
Sacramento, California, and conducted most of their cattle
operations in northern California. In 1975, the family started
relocating their cattle operations to Burns, Oregon, because land
prices became too expensive in northern California. By the
1980s, the Hoyt family resided in the Burns area, and the Hoyt
organization maintained offices in Burns, Oregon, and Elk Grove,
California.
Around 1978 or 1979, Jay Hoyt became interested in the
possibility of organizing sheep breeding partnerships similar to
the cattle breeding partnerships. Due to this interest, Jay Hoyt
began discussions with David Barnes, a longtime sheep breeder and
childhood friend.
David Barnes and his wife April Barnes owned and operated
Barnes Ranch, their sole proprietorship sheep breeding business
5
For a more detailed account of the Hoyt cattle operations
and partnerships see Durham Farms #1, J.V. v. Commissioner, T.C.
Memo. 2000-159, affd. 59 Fed. Appx. 952 (9th Cir. 2003).
- 9 -
located in California’s Sacramento Valley. The Barnes’ son,
Randy Barnes, eventually took on a substantial role in the
management and operation of the family sheep business after
completing college in 1985.
David Barnes had extensive experience in breeding several
breeds of purebred sheep. However, by the 1980s, he concentrated
on Rambouillets and Suffolks. Rambouillets have white faces and
cream colored bodies and are a breed noted for producing good
quality wool. Suffolks, on the other hand, have black faces and
legs and cream colored bodies and are a breed noted for producing
good quality meat. By the late 1980s, David Barnes and Randy
Barnes had acquired very good reputations in purebred sheep
breeding circles and generally were considered to be among the
country’s top breeders of Rambouillets and Suffolks.
As a result of various discussions and negotiations with
David Barnes, Jay Hoyt decided to form, operate, and promote
sheep partnerships in a very similar manner as the Hoyt cattle
partnerships.
B. Formation and Operation of the Hoyt Sheep Partnerships
From 1981 through 1991, Jay Hoyt formed eight of the nine
sheep partnerships at issue under and pursuant to the laws of
California. RCR #7 was formed under and pursuant to the laws of
Nevada. From their inception, all nine sheep partnerships were
operated from the Hoyt office located in Elk Grove, California.
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The Certificate and Articles of Limited Partnership of River
City Ranches Ltd. (RCR #1) states that the partnership was formed
in 1981 as a limited partnership under and pursuant to the laws
of the State of California. Jay Hoyt was designated the general
partner, and the individual investors were collectively
designated the limited partners.
The Certificate and Articles of Limited Partnership of River
City Ranches #2 Ltd. (RCR #2) states that the partnership was
formed in 1982 as a limited partnership under and pursuant to the
laws of the State of California. Jay Hoyt was designated the
general partner, and the individual investors were collectively
designated the limited partners.
The Certificate of Limited Partnership of River City Ranches
#3 Ltd. (RCR #3) states that the partnership was formed in 1983
as a limited partnership prepared and recorded under section
15502 of the California Corporations Code, Uniform Limited
Partnership Act. Jay Hoyt was designated the general partner,
and the individual investors were collectively designated the
limited partners.
The Certificate and Articles of Limited Partnership of River
City Ranches #4 Ltd. (RCR #4) states that the partnership was
formed in 1984 as a limited partnership under and pursuant to the
laws of the State of California. Jay Hoyt was designated the
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general partner, and the individual investors were collectively
designated the limited partners.
The Partnership Agreement of River City Ranches #5 Ltd. (RCR
#5) states that the partnership was formed in 1985 as a general
partnership under the laws of the State of California pursuant to
the provisions of the Uniform Partnership Act. The agreement
states that the Uniform Partnership Act of the State of
California at the time of the partnership’s formation or as may
be thereafter amended shall govern the partnership. Jay Hoyt and
W.J. Hoyt Sons Management Co. (Management) were designated the
managing partners, and the individual investors were collectively
designated as the investing partners. All the investing partners
were general partners of the partnership and not limited
partners, as in the previous sheep partnerships.
The Partnership Agreement of River City Ranches #6 Ltd. (RCR
#6) states that the partnership was formed in 1986 as a general
partnership under the laws of the State of California pursuant to
the provisions of the Uniform Partnership Act. The agreement
states that the Uniform Partnership Act of the State of
California at the time of the partnership’s formation or as may
be thereafter amended shall govern the partnership. Jay Hoyt was
designated the managing partner, and the individual investors
were collectively designated as the investing partners. All the
investing partners were general partners of the partnership.
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The Partnership Agreement of Ovine Genetic Technology
Syndicate 1987-1, J.V. (OGT 87) states that the partnership was
formed in 1987 as a general partnership under the laws of the
State of California pursuant to the provisions of the Uniform
Partnership Act. The agreement states that the Uniform
Partnership Act of the State of California at the time of the
partnership’s formation or as may be thereafter amended shall
govern the partnership. Jay Hoyt and Management were designated
the managing partners, and the individual investors were
collectively designated as the investing partners. All the
investing partners were general partners of the partnership.
The record does not contain any partnership agreements for
RCR #7 or Ovine Genetic Technology 1990 (OGT 90). However, other
documents in the record indicate that RCR #7 is a Nevada general
partnership governed by the Uniform Partnership Act of the State
of Nevada, and OGT 90 is a California general partnership
governed by the Uniform Partnership Act of the State of
California.
From the time each Hoyt sheep partnership was formed through
1998, Jay Hoyt was the general partner responsible for all the
management, operation, and promotion functions. He maintained
power of attorney to manage and conduct partnership business.
Jay Hoyt oversaw the entire Hoyt operation and made all major
decisions.
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Jay Hoyt was also the tax matters partner (TMP) of each
partnership and was a licensed enrolled agent. As an enrolled
agent he represented many of the investor-partners before the
Internal Revenue Service (IRS). In 1997, the IRS disbarred Jay
Hoyt as an enrolled agent for certain alleged improprieties
relating to his individual income tax returns. By orders of the
Tax Court issued from June 22, 2000, through May 15, 2001, Jay
Hoyt was removed as TMP from the sheep partnerships.
From April 1981 through February 1987, Jay Hoyt,
representing each of the Hoyt sheep partnerships (excluding OGT
90)6, entered into agreements with David Barnes to purchase
Rambouillet and Suffolk breeding ewes from Barnes Ranch for each
of the partnerships. The separate agreements that each
partnership entered into with Barnes Ranch were substantially
similar in all material respects. Each agreement contained terms
for the partnerships to purchase the sheep with no money down by
each issuing Barnes Ranch a promissory note. The partners of
each partnership then personally assumed the partnership debt
under an assumption agreement. Further, each partnership entered
into a share-crop operating agreement with Barnes Ranch to manage
6
In the River City Ranches #4 test case, Jay Hoyt
maintained that OGT 90 in 1990 entered into sheep sale and share-
crop management agreements with W.J. Hoyt Sons Ranches MLP, not
with Barnes Ranch. However, during that test case trial, David
Barnes testified that Barnes Ranch had sold OGT 90 its “breeding
sheep”. See River City Ranches #4, J.V. v. Commissioner, T.C.
Memo. 1999-209, affd. 23 Fed. Appx. 744 (9th Cir. 2001).
- 14 -
and pay all expenses with respect to each partnership’s breeding
sheep.
The dates on which the purchase agreements each of the eight
partnerships and Barnes Ranch entered into, the number of
purported breeding ewes each partnership allegedly acquired, the
total stated purchase price, and the average price per sheep each
partnership agreed to pay for its sheep are as follows:
Total
Date of Number Purchase Avg. Price
Partnership Entry of Ewes Price per Sheep
RCR #1 4-20-81 401 $455,100 $1,135
RCR #2 2-15-82 514 626,400 1,219
RCR #3 3-20-83 584 713,140 1,221
RCR #4 2-01-84 1,468 2,087,880 1,422
RCR #5 5-01-85 1,257 1,825,000 1,452
RCR #6 1-15-86 1,415 1,960,140 1,385
RCR #7 2-01-87 1,873 3,982,360 2,126
OGT 87 1-05-87 1,849 3,636,600 1,967
Each of the nine sheep partnerships at issue was supposedly
formed to operate as a sheep breeding partnership, owning its own
flock of sheep purchased from Barnes Ranch. However, Jay Hoyt
and David Barnes were not independent parties acting at arm’s
length with respect to any of the sheep agreements. In
actuality, none of the sheep partnerships acquired the benefits
and burdens of ownership of any of the sheep listed above.
The bills of sale that Barnes Ranch issued the sheep
partnerships (excluding OGT 90) listed large numbers of
individual breeding sheep that did not exist. The flock recap
sheets prepared by Jay Hoyt contained false information and did
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not represent the sheep purportedly owned by each partnership.
Further, the total purchase price that each partnership agreed to
pay for its sheep was many times the fair market value of similar
quality sheep. Additionally, it was determined that none of the
promissory notes that the sheep partnerships issued for their
sheep were bona fide recourse debt. The notes had no economic
effect to the partnerships and were not valid indebtedness.
Moreover, Barnes Ranch did not even provide the partnerships with
the management services required under the agreements.
The cattle and sheep partnerships were organized and
operated in essentially the same manner. In addition, all of the
Hoyt organization investor partnerships were marketed and
promoted in an identical fashion. Jay Hoyt even used the
promotional literature prepared for the cattle partnerships to
promote the sheep partnerships. Some of the investors placed in
the sheep partnerships believed they had invested in cattle
partnerships.
In the early 1980s with the formation of many more investor
partnerships, the documents, records, and tax returns the Hoyt
organization prepared relating to its transactions with the
cattle partnerships were inaccurate, unreliable, and in many
instances falsified. Likewise, the Hoyt organization prepared
and maintained the sheep partnerships’ documents, records, and
tax returns in an inaccurate and unreliable manner. These
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deficient record-keeping practices continued for both the cattle
and sheep partnerships through 1998, when all the investor
partnerships were consolidated for bankruptcy purposes. For the
years at issue, often no records were kept at all.
As the general partner managing each sheep partnership, Jay
Hoyt was responsible for and directed the preparation of the tax
returns of each partnership, and he typically signed and filed
each tax return. However, separate bookkeeping and accounting
records for each of the sheep partnerships were never maintained.
Nor did Jay Hoyt maintain separate bank accounts for each of
the sheep partnerships. From 1981 until sometime in 1990, checks
from the sheep partners were received at the Hoyt office in Elk
Grove, California, and deposited in one checking account. The
account was in the name of River City Ranches (RCR account) and
maintained at the Bank of Alex Brown located in Elk Grove,
California.7
Sometime in 1990, Jay Hoyt discontinued using the RCR
account. He implemented a new business practice of commingling
all Hoyt organization funds in one checking account referred to
as the pooling account. This account was in the name of W.J.
Hoyt Sons Ranches MLP (MLP) and maintained at the First
Interstate Bank in Elk Grove, California. The funds in the
7
The Bank of Alex Brown became the First Interstate Bank
in 1989.
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pooling account were then allocated to the various Hoyt entities
based on a percentage determined by a pooling committee
administered by Jay Hoyt. The duration of the pooling account
cannot be determined by the record. During the years at issue,
substantial sums were deposited into and withdrawn by check from
both the RCR account and the pooling account.
At the end of 1993 or early 1994, the sheep partnerships’
promissory notes and share-crop management agreements were
assigned to MLP. From that point on, MLP was responsible for
providing the various functions that were previously the
responsibility of Barnes Ranch.
C. Respondent’s Examination Efforts and Enforcement Actions
Since approximately 1980, the IRS regularly examined many of
the partnership returns of the Hoyt cattle partnerships and the
individual returns of their partners. The IRS also examined the
sheep partnerships’ returns and the individual returns of their
partners. Because Jay Hoyt did not maintain separate bank
accounts and accurate accounting records for each of the sheep
partnerships, the IRS audited the partnership tax returns as a
group. The IRS generally disallowed the partnership tax benefits
that each cattle and sheep partnership and their respective
partners claimed, resulting in those partnerships and partners
commencing numerous cases in the Tax Court.
The Tax Court litigation over the years concerning the Hoyt
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cattle and sheep partnerships includes: (1) Bales v.
Commissioner, T.C. Memo. 1989-568; River City Ranches #4, J.V. v.
Commissioner, T.C. Memo. 1999-209, affd. 23 Fed. Appx. 744 (9th
Cir. 2001); and Durham Farms #1, J.V. v. Commissioner, T.C. Memo.
2000-159, affd. 59 Fed. Appx. 952 (9th Cir. 2003), three test
cases dealing with partnership adjustments; (2) numerous other
cases involving the 1980 through 1986 taxable years of Hoyt
cattle partnerships and their partners that essentially were
resolved after respondent and Jay Hoyt entered into a memorandum
of understanding (MOU) on May 20, 1993, which outlined a basis
for a settlement of all outstanding cattle partnership cases for
the 1980 through 1986 taxable years; and (3) the instant case
involving the nine Hoyt sheep partnerships.
From 1984 through 2000, the IRS’s tax enforcement efforts
with respect to the tax shelter program operated by Jay Hoyt
included: (1) Examinations of the returns of the cattle and
sheep partnerships and their partners; (2) disallowance of the
partnership tax benefits that were claimed; (3) issuance of
prefiling notices to partners and freezing tax refunds they
claimed; and (4) defending litigation commenced in the Tax Court
by partnerships and partners over the adjustments determined in
the FPAAs and notices of deficiency issued by respondent.
From the IRS examinations of the returns of all the cattle
and sheep partnerships and investor-partners through this Tax
- 19 -
Court litigation, IRS personnel either strongly suspected or
believed these partnerships to be abusive tax shelters. The
IRS’s original position had been that the purported acquisitions
of breeding animals by the cattle and sheep partnerships lacked
economic substance (i.e., were economic shams), that the
partnerships’ stated purchase prices for the animals greatly
exceeded the fair market value of the animals, and that the
promissory note each partnership issued in connection with its
purported acquisition of breeding animals was not a valid
indebtedness.
The holding in Bales v. Commissioner, T.C. Memo. 1989-568,
however, set back considerably the IRS’s tax enforcement efforts
against Jay Hoyt and the cattle and sheep partnerships that he
promoted and operated under his tax shelter program. In Bales,
this Court did not sustain the IRS’s disallowance of many of the
tax benefits a number of partners in specific cattle partnerships
involved therein claimed for 1977, 1978, and 1979. This Court,
among other things, found that the Bales partnerships had
acquired the benefits and burdens of ownership with respect to
specific breeding cattle, that the purchase prices for the
partnership cattle did not exceed their fair market value, and
that the promissory notes these partnerships issued were valid
recourse indebtedness.
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The Examination Division examined many of the returns of the
cattle and sheep partnerships and their partners for the 1980
through 1986 taxable years. During the Bales litigation, the
Examination Division obtained extensions from the partners in the
cattle partnerships to extend the period of limitations for
assessing and collecting income tax liabilities for the 1980,
1981, and 1982 tax years.8 After obtaining the extensions, the
Examination Division temporarily suspended examination activity
with respect to those tax years.
In early 1989, the Examination Division resumed examining
and processing the individual returns filed by partners in the
cattle partnerships for the 1980, 1981, and 1982 tax years.
Shortly thereafter, standard revenue agent reports for those
years were prepared that proposed to disallow all tax benefits
these partners had claimed from the cattle partnerships.
From about 1988 through 1991, an Examination Division team
conducted partnership-level examinations of many of the returns
of the cattle and sheep partnerships for the 1983 through 1986
8
The unified partnership audit and litigation provisions
of secs. 6221-6233, are not applicable to the pre-1983 taxable
years of the cattle and sheep partnerships. These provisions
were enacted as part of the Tax Equity & Fiscal Responsibility
Act of 1982 (TEFRA), Pub. L. 97-248, sec. 402(a), 96 Stat. 324,
648, and are generally applicable to partnership taxable years
beginning after Sept. 3, 1982.
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taxable years.9 During these examinations, Jay Hoyt and the Hoyt
organization failed to provide adequate documents and records
substantiating the livestock the partnerships purportedly
acquired and owned.
Following the 1989 Bales opinion, the IRS attempted to
verify the existence of all purported livestock that the cattle
and sheep partnerships allegedly owned for post-1979 taxable
years. As a result of an administrative summons enforcement
action brought in the United States District Court for the
District of Oregon (U.S. District Court) in 1992, the IRS first
inspected and counted all the purported cattle and sheep that
these partnerships allegedly owned from fall 1992 through spring
1993. The livestock count and inspection were conducted in
connection with the IRS’s examinations of the post-1986 taxable
year returns of the partnerships.
By February 1993, although the IRS’s inspection and
livestock count were not fully completed, IRS personnel concluded
that Jay Hoyt and the Hoyt organization had greatly overstated
the number of actual breeding animals that these partnerships
claimed to own. The IRS further concluded that Jay Hoyt and the
Hoyt organization had also grossly overvalued the livestock upon
which the partnerships were claiming tax benefits.
9
The unified partnership audit and litigation provisions
of secs. 6221-6233, applied to these partnership taxable years.
See supra note 8.
- 22 -
Based on the above conclusions from its count of the cattle
and sheep, the IRS, beginning in February 1993, generally froze
and stopped issuing income tax refunds to partners in the cattle
and sheep partnerships. The IRS issued prefiling notices to the
investor-partners advising them that, starting with the 1992
taxable year, the IRS would (1) disallow the tax benefits that
the partners claimed on their individual returns from the cattle
and sheep partnerships and (2) not issue any tax refunds these
partners might claim attributable to such partnership tax
benefits.10
Respondent eventually issued: (1) Notices of deficiency to
numerous investor-partners for the 1980, 1981, and 1982 tax
years, in which respondent determined that none of the tax
benefits the partners claimed from the cattle and sheep
partnerships were allowable; and (2) FPAAs to many of the cattle
and sheep partnerships for the taxable years 1983, 1984, 1985,
and 1986, in which respondent disallowed the tax benefits these
partnerships claimed.
Following the IRS’s freezing in February 1993 of tax refunds
to partners in the cattle and sheep partnerships, the Hoyt
organization experienced financial difficulties. Freezing the
10
Ultimately, this Court, in Durham Farms #1, J.V. v.
Commissioner, T.C. Memo. 2000-159, and River City Ranches #4,
J.V. v. Commissioner, T.C. Memo. 1999-209, upheld respondent’s
disallowance of almost all tax benefits claimed by those cattle
and sheep partnerships for certain post-1986 taxable years.
- 23 -
tax refunds greatly diminished the amount of money the Hoyt
organization obtained from new and existing partners.
After the opinion in Bales was filed and appropriate
decisions were entered, settlement negotiations were conducted
between Jay Hoyt and the IRS, which culminated in the MOU.
Beginning in 1993, an increasing number of investor-partners
were becoming disgruntled with Jay Hoyt and the Hoyt
organization. Many partners stopped making their partnership
payments and withdrew from their partnerships, due in part to
respondent’s tax enforcement. Jay Hoyt urged the partners to
support and remain loyal to the organization in challenging the
IRS’s actions. The Hoyt organization warned that partners who
stopped making their partnership payments and withdrew from their
partnerships (1) would be reported to the IRS as having
substantial debt relief income and (2) would have to deal with
the IRS on their own.
On or about June 8, 1995, in the 32d Judicial District Court
for the Parish of Terrebonne, State of Louisiana, a group of
investors obtained an $11 million default judgment against Jay
Hoyt, Management, MLP, and several cattle breeding partnerships
for fraud and other violations. See Mabile, et al. v. Walter J.
Hoyt, III, et al., No. 95-112222. On February 24, 1997, the
plaintiffs in the Louisiana lawsuit filed involuntary bankruptcy
petitions in the U.S. Bankruptcy Court for the District of Oregon
- 24 -
(Bankruptcy Court) to force Management and MLP into bankruptcy
and liquidate each company’s assets. On June 5, 1997, the
Bankruptcy Court entered an order for relief, in effect finding
that Management and MLP were both bankrupt.
In the Management and the MLP bankruptcy cases, the United
States Trustee (U.S. Trustee), in 1997, moved to have the
Bankruptcy Court substantively consolidate all assets and
liabilities of almost all Hoyt organization entities and the many
Hoyt investor partnerships. This consolidation included all the
cattle and sheep partnerships. On November 13, 1998, the
Bankruptcy Court entered its Judgment for Substantive
Consolidation, consolidating all the above mentioned entities for
bankruptcy purposes. The U.S. Trustee then sold off what little
livestock that the Hoyt organization owned and/or managed on
behalf of the cattle and sheep partnerships.
From 1992 through 1998, the IRS at various times issued
standard letters to investor-partners advising them of the IRS’s
position in disputing the claimed tax benefits from the cattle
and sheep partnerships. From 1992 through 1998, Revenue Agent
Norman Johnson and other IRS employees discussed the IRS’s
position with hundreds of investor-partners in the cattle and
sheep partnerships. Many of the discussions addressed the
confusion various partners had regarding certain tax issues as a
result of the conflicting information and tax advice that Jay
- 25 -
Hoyt and the Hoyt organization provided the investor-partners.
Respondent ultimately issued FPAAs to the cattle and sheep
partnerships for post-1986 taxable years, in which respondent
disallowed the tax benefits these partnerships claimed for those
years. These partnerships then commenced numerous Tax Court
cases for a redetermination of the FPAA adjustments.
On June 22, 1999, this Court issued its opinion in River
City Ranches #4, J.V. v. Commissioner, T.C. Memo. 1999-209, a
test case sustaining respondent’s disallowance of all tax
benefits claimed by three sheep partnerships. On May 18, 2000,
this Court issued its opinion in the Durham Farms #1, J.V. v.
Commissioner, T.C. Memo. 2000-159, a test case in which the Court
disallowed almost all tax benefits that seven cattle partnerships
claimed. In light of these holdings and the mounting evidence,
petitioners conceded the various partnership adjustments,
choosing to focus on the issues raised in their amended petition.
D. Governmental Investigations of Jay Hoyt
After the initial IRS examinations of the many cattle and
sheep partnerships, several investigations by various Government
agencies were commenced relating to Jay Hoyt’s activities.
From 1984 through 1986, the IRS’s Criminal Investigation
Division (CID) conducted an investigation of Jay Hoyt for
allegedly backdating documents to enable 12 investor-partners to
claim improper deductions and credits for 1980, 1981, and 1982.
- 26 -
On July 31, 1986, the IRS District Counsel’s Office in
Sacramento, California, referred the matter to the Department of
Justice (DOJ) for prosecution.
The DOJ then forwarded the matter to the U.S. Attorney’s
Office in Sacramento for review and consideration. On August 12,
1987, the U.S. Attorney’s Office declined to prosecute Jay Hoyt.
The Assistant U.S. Attorney assigned to consider the possible
criminal tax prosecution concluded that: (1) The total tax loss
to the Government from the backdating was relatively small,
probably less than $30,000; and (2) it would be difficult to
obtain a conviction of Jay Hoyt in a jury trial.
In July 1989, a member of the IRS Examination Division team
(which had been examining the returns of many of the cattle and
sheep partnerships for the 1983 through 1986 taxable years)
recommended that the CID investigate Jay Hoyt for allegedly
making and/or assisting in fraudulent or false tax return
statements in connection with his promotion and operation of the
cattle partnerships. In his referral report to the CID, this
team member concluded that Jay Hoyt was selling cattle to some
partnerships that had already been sold to other partnerships and
that he was depreciating cattle that did not exist. The CID then
conducted an investigation of the alleged nonexistent cattle and
Jay Hoyt’s represented value for them. CID’s investigation was
completed no later than October 1, 1990.
- 27 -
On October 13, 1989, during the CID’s above-mentioned
investigation, the U.S. Attorney’s Office in Sacramento requested
that the CID review certain information and determine whether IRS
special agents from the CID should join in an ongoing grand jury
investigation of Jay Hoyt for possible violations of the Internal
Revenue laws. On November 3, 1989, the IRS Regional Counsel’s
Office requested that IRS special agents be authorized to
participate in the grand jury investigation. On October 2, 1990,
the U.S. Attorney’s Office ended the grand jury investigation of
Jay Hoyt without an indictment.
On or about August 31, 1993, the CID commenced an
investigation of Jay Hoyt for possible criminal violations of the
Internal Revenue laws due to his alleged misrepresentation of the
total number and value of purported cattle that the cattle
partnerships allegedly owned. The CID closed the investigation
on or about October 7, 1993, and did not recommend that the IRS
attempt to have Jay Hoyt prosecuted.
On or about September 8, 1995, the CID commenced an
investigation of Jay Hoyt for possible criminal violations of the
Internal Revenue laws relating to the alleged shortage of cattle
from the Hoyt cattle partnerships. The CID closed this
investigation on September 29, 1995, and did not recommend that
the IRS attempt to have Jay Hoyt prosecuted.
- 28 -
From 1993 through 1998, other governmental agencies also
investigated Jay Hoyt, including the Securities and Exchange
Commission (SEC), the United States Postal Service (USPS), and
the U.S. Trustee. As a result of a referral for further
investigation from the U.S. Attorney’s Office in Seattle,
Washington, to the USPS, postal inspectors in late 1993 commenced
an investigation of Jay Hoyt and the Hoyt organization for
possible mail fraud violations.
During 1993 and 1994, the SEC conducted an ongoing
investigation of Jay Hoyt, but the SEC eventually closed its
investigation and deferred to the USPS’s investigation of Jay
Hoyt that had been commenced in late 1993. In June 1995, postal
inspectors seized numerous documents and records from the offices
of the Hoyt organization pursuant to a search warrant.
In 1995, Hoyt & Sons Ranch Properties (HSRP) partnership,
one of the Hoyt organization’s ranch land partnerships, filed a
bankruptcy petition under Chapter 11 of the Bankruptcy Code in
the Bankruptcy Court. After the bankruptcy filing, the U.S.
Trustee commenced an investigation of Jay Hoyt for possible gross
mismanagement or bankruptcy fraud in connection with HSRP. The
U.S. Trustee also investigated Jay Hoyt in connection with the
Management and MLP bankruptcy cases commenced in 1997.
On November 24, 1998, the Government filed an indictment in
the U.S. District Court against Jay Hoyt and several other
- 29 -
persons who had worked for or engaged in transactions with the
Hoyt organization, including April and David Barnes, charging
them with numerous counts of conspiracy and mail fraud. On June
2, 1999, the Government filed a superseding indictment against
the same defendants, which, among other things, charged Jay Hoyt
with 54 counts of conspiracy to commit fraud, mail fraud,
bankruptcy fraud, and money laundering. See United States v.
Barnes, et al., No. CR 98-529-JO-04 (D. Or. Feb. 12, 2001), affd.
sub nom. United States v. Hoyt, 47 Fed. Appx. 834 (9th Cir.
2002). All future references to Jay Hoyt’s indictment are to the
superseding indictment of June 2, 1999.
Following a jury trial in the U.S. District Court case noted
above, on February 12, 2001, Jay Hoyt was convicted of 1 count of
conspiracy to commit fraud, 31 counts of mail fraud, 3 counts of
bankruptcy fraud, and 17 counts of money laundering. See id.
The U.S. District Court then sentenced Jay Hoyt to 235 months of
imprisonment and also ordered him to pay restitution of over $102
million to the individual victims of his crimes. This $102
million figure represented the total amount that the Government
(using Hoyt organization records) determined was paid to the Hoyt
organization from 1982 through 1998 by investor-partners in the
cattle partnerships, the sheep partnerships, and other similar
partnerships that Jay Hoyt promoted. The fraud perpetrated by
Jay Hoyt “impacted over 4,000 people and had actual and intended
- 30 -
losses exceeding $200 million.” United States v. Hoyt, 47 Fed.
Appx. 834, 837 (9th Cir. 2002).
Following the Government’s filing in late 1998 of the
indictment against Jay Hoyt, respondent moved this Court to
remove Jay Hoyt as TMP in many of the cattle and sheep
partnership cases before the Tax Court. In orders issued from
June 22, 2000, through May 15, 2001, this Court removed Jay Hoyt
as TMP in numerous cattle and sheep partnership cases, pursuant
to Rule 250(b).
E. Certain Agreements Extending the Period of Limitations That
Jay Hoyt and the IRS Executed
Jay Hoyt and the IRS executed agreements extending the
period of limitations on assessments for certain taxable years of
RCR #2, RCR #3, RCR #4, RCR #5, and RCR #7. Jay Hoyt executed
each of the extension agreements as TMP for the various sheep
partnerships.
The partnership taxable year involved, the date upon which
the partnership filed its return for that year, the IRS extension
form used, the respective dates upon which Jay Hoyt and the IRS
executed the various forms, the date to which Jay Hoyt and the
IRS (in the form) agreed to extend the period of limitations, and
the date upon which respondent issued each partnership the FPAA
are as set forth below:
- 31 -
Taxable Date Date to Date
Year Return IRS Date Executed Which FPAA
Partnership Ended Filed Form Hoyt IRS Extended Issued
RCR #2 12-31-87 05-19-88 872-P 02-15-91 02-27-91 12-31-92 12-20-93
872 04-06-91 04-10-91 12-31-92
872 & 07-25-92 08-26-92 06-30-93
872-P
872-P 03-06-93 03-29-93 12-31-93
RCR #3 12-31-87 10-20-88 872-P 02-15-91 02-22-91 12-31-92 12-20-93
872 04-06-91 04-10-91 12-31-92
872-P & 07-25-92 08-26-92 06-30-93
872
872-P 03-06-93 03-30-93 12-31-93
RCR #3 09-30-89 04-15-90 872-P & 07-25-92 08-26-92 06-30-93 12-20-93
872
872-P 03-06-93 03-30-93 12-31-93
RCR #4 12-31-84 10-18-85 872-O 08-01-87 08-01-87 Indefinite 03-25-96
RCR #5 12-31-87 10-21-88 872-P 02-15-91 02-22-91 12-31-92 12-20-93
872 04-06-91 04-10-91 12-31-92
872-P & 07-25-92 08-26-92 06-30-93
872
RCR #5 12-31-88 10-17-89 872-P 02-15-91 02-22-91 12-31-92 12-20-93
872 04-06-91 04-10-91 12-31-92
872-P & 07-25-92 08-26-92 06-30-93
872
872-P 03-06-93 03-30-93 12-31-93
RCR #5 09-30-89 04-15-90 872-P & 07-25-92 08-26-92 06-30-93 12-20-93
872
872-P 03-06-93 03-30-93 12-31-93
RCR #7 12-31-87 10-20-88 872-P 02-15-91 02-22-91 12-31-92 12-20-93
872 04-06-91 04-10-91 12-31-92
872-P & 07-25-92 08-26-92 06-30-93
872
872-P 03-06-93 03-30-93 12-31-93
RCR #7 12-31-88 10-17-89 872-P 02-15-91 02-22-91 12-31-92 12-20-93
872 04-06-91 04-10-91 12-31-92
872-P & 07-25-92 08-26-92 06-30-93
872
872-P 03-06-93 03-30-93 12-31-93
RCR #7 09-30-89 04-15-90 872-P & 07-25-92 08-26-92 06-30-93 12-20-93
872
872-P 03-06-93 03-30-93 12-31-93
OPINION
Petitioners bear the burden of proof on all issues raised in
their amended petitions. Rules 142(a), 240(a); Welch v.
Helvering, 290 U.S. 111 (1933).
- 32 -
Issue 1. Entitlement to Partnership Level Theft Loss Deductions
A. The Parties’ Arguments
1. Petitioners’ Arguments
It is our understanding that the gist of petitioners’ theory
regarding entitlement to a theft loss deduction for each taxable
year at issue is as follows: (1) Each of the nine sheep
partnerships was the victim of a theft by Jay Hoyt because his
conviction in the U.S. District Court for specific Federal crimes
establishes the existence of the theft11; (2) since Oregon is
where the partnerships were formed and operated, Oregon is the
jurisdiction where the thefts occurred; (3) Oregon criminal
statutes that are similar to the Federal criminal statutes Jay
Hoyt was convicted of violating are evidence that Jay Hoyt’s
Federal crimes are also crimes in Oregon; and (4) each
partnership is entitled to a theft loss deduction equal to the
total amount of cash invested by the partners in each year.
Further, petitioners contend that the Government’s
successful prosecution of Jay Hoyt precludes respondent, under
doctrines of collateral and/or judicial estoppel, from denying
that the Hoyt sheep partnerships and their investor-partners were
victims of a theft.
11
The details of Jay Hoyt’s criminal conviction and
specific crimes for which he was found guilty are discussed supra
pp. 28-30.
- 33 -
While petitioners argue that a theft occurred in each year
equal to the total amount of cash contributed in that year, they
admit that each of the sheep partnerships did not discover the
alleged thefts until after the years at issue. However,
petitioners argue that this Court should apply the doctrine of
equitable estoppel and the Ninth Circuit’s holding in Rod Warren
Ink v. Commissioner, 912 F.2d 325, 326 (9th Cir. 1990), revg. 92
T.C. 995 (1989), to the “exceptional circumstances” presented in
this case, to override section 165(e) and allow each partnership
to deduct a theft loss for each of the years at issue.
Petitioners acknowledge that they seek this remedy to reduce the
amount of interest that individual partners will be assessed as a
result of the partnership adjustments.
Petitioners assert that if the IRS had warned the investor-
partners that serious problems existed and disclosed information
the IRS had regarding Jay Hoyt’s diverting of their funds and
selling of nonexistent sheep to their partnerships, the partners
would not have continued investing in the partnerships and would
have stopped their payments to the Hoyt organization. At a
minimum, petitioners state, these partners might have been able
to discover the theft earlier, allowing the partnerships and
themselves to claim earlier offsetting theft loss deductions.
Petitioners thus maintain that each partnership under equitable
principles should be allowed a theft loss deduction for each of
- 34 -
the years at issue equal to the cash payments made by the
partners to the partnerships during those years.
2. Respondent’s Arguments
Respondent contends that the Hoyt sheep partnerships are not
entitled to theft loss deductions for any of the years at issue.
Respondent argues that petitioners have failed to satisfy all of
the requirements under section 165 for deducting a theft loss.
Specifically, respondent asserts that petitioners have failed to
establish: (1) The partnerships, as opposed to the partners,
were victims of a theft; (2) the amount of the alleged theft; (3)
that the alleged theft from each partnership was discovered
during the 1984 through 1996 years at issue; and (4) that no
reasonable prospect for recovery existed during the years at
issue.
Respondent states that in United States v. Barnes, et al.,
No. CR 98-529-JO-04 (D. Or. Feb. 12, 2001), the Government’s
prosecution focused on the activities of Jay Hoyt, other co-
defendants, and the Hoyt organization in promoting and operating
the cattle partnerships, not the sheep partnerships. Hence,
respondent maintains that collateral estoppel and judicial
estoppel are inapplicable, as the Government’s conviction of Jay
Hoyt neither establishes a theft from the sheep partnerships nor
precludes respondent from denying that the sheep partnerships
- 35 -
were victims of a theft.12
Respondent disputes that equitable estoppel or the Rod
Warren Ink case should be applied to override section 165(e) and
allow the partnerships theft loss deductions for the years at
issue. Respondent asserts that petitioners have failed to
establish: (1) The IRS misled the partnerships and their
partners about Jay Hoyt’s fraudulent activities against them; and
(2) the partnerships and their partners reasonably relied to
their detriment on the IRS’s alleged failure to stop and disclose
Jay Hoyt’s promotion of the cattle and sheep partnerships at an
earlier date. Additionally, respondent adds that the Court of
Appeals for the Ninth Circuit requires “affirmative misconduct”
by the Government as a threshold matter before deciding whether
the traditional requirements of equitable estoppel are met.
Respondent disputes that there was affirmative misconduct by the
IRS.
B. Discussion of Applicable Law
1. Section 165 Theft Loss
Section 165 generally allows a taxpayer to deduct losses
12
In this connection, Jeffrey Hull (the postal inspector
who investigated Jay Hoyt and later worked with the prosecution
team) testified that the criminal case focused on the cattle
partnerships and not the sheep partnerships. Mr. Hull explained
that his investigation had focused upon the cattle partnerships
since they represented the majority of the investor partnerships,
and that he and others saw no point in having to address
collateral issues concerning the sheep partnerships.
- 36 -
from the theft of property. Sec. 165(a), (c)(3). Petitioners
bear the burden of proving by a preponderance of the evidence
that a theft actually occurred. Rule 142(a); Jones v.
Commissioner, 24 T.C. 525, 527 (1955); Allen v. Commissioner, 16
T.C. 163, 166 (1951); Ginesky v. Commissioner, T.C. Memo. 1994-
551.
To carry this burden of proof, section 165 requires
petitioners to establish all the required elements of a theft
loss. Yates v. Commissioner, T.C. Memo. 1988-565. First,
petitioners must show that a theft occurred under the law of the
jurisdiction wherein the alleged loss occurred. Monteleone v.
Commissioner, 34 T.C. 688, 692 (1960). Second, petitioners must
prove the amount of the theft loss. Gerstell v. Commissioner, 46
T.C. 161, 175 (1966); sec. 1.165-8(c), Income Tax Regs. Third,
petitioners must establish the date that the loss from theft was
discovered. Sec. 165(e); McKinley v. Commissioner, 34 T.C. 59,
63 (1960); sec. 1.165-8(a), Income Tax Regs.
For purposes of section 165, “any loss arising from theft
shall be treated as sustained during the taxable year in which
the taxpayer discovers such loss.” Sec. 165(e); sec. 1.165-
8(a)(2), Income Tax Regs. However, if in the year of discovery
there exists a claim for reimbursement with respect to which
there is a reasonable prospect of recovery, only that portion of
the loss not covered by that claim for reimbursement is
- 37 -
considered sustained by the taxpayer. Viehweg v. Commissioner,
90 T.C. 1248, 1255-1256 (1988); secs. 1.165-8(a)(2), 1.165-
1(d)(2)(ii), Income Tax Regs.
As used in section 165, the term “theft” is a word of
general and broad connotation, intended to cover any criminal
appropriation of another’s property, including theft by larceny,
embezzlement, obtaining money by false pretenses, and any other
form of guile. Bellis v. Commissioner, 61 T.C. 354, 357 (1973),
affd. 540 F.2d 448 (9th Cir. 1976); see sec. 1.165-8(d), Income
Tax Regs. Whether a loss from theft has occurred for purposes of
section 165 is determined under the laws of the State wherein the
loss allegedly was sustained. Bellis v. Commissioner, 540 F.2d
448, 449 (9th Cir. 1976), affg. 61 T.C. 354 (1973). However, a
Federal criminal statute may provide the requisite criminality
allowing a taking of a taxpayer’s property to be considered a
theft for purposes of section 165. E.g., Nichols v.
Commissioner, 43 T.C. 842, 884-885 (1965)(holding Federal mail
fraud to be a theft for purposes of section 165).
2. Estoppel Principles
a. Equitable Estoppel
“Equitable estoppel is a judicial doctrine that ‘precludes a
party from denying his own acts or representations which induced
another to act to his detriment.’” Hofstetter v. Commissioner,
98 T.C. 695, 700 (1992)(quoting Graff v. Commissioner, 74 T.C.
- 38 -
743, 761 (1980), affd. 673 F.2d 784 (5th Cir. 1982)). It is well
established that the doctrine of equitable estoppel should be
applied against the Commissioner in tax cases “‘with the utmost
caution and restraint.’” Kronish v. Commissioner, 90 T.C. 684,
695 (1988) (quoting Boulez v. Commissioner, 76 T.C. 209, 214-215
(1981), affd. 810 F.2d 209 (D.C. Cir. 1987)). Further, the
Supreme Court has stated that the Government may not be estopped
on the same grounds as other litigants. OPM v. Richmond, 496
U.S. 414, 419 (1990); Heckler v. Community Health Servs., 467
U.S. 51, 60 (1984).
The following conditions must be satisfied before equitable
estoppel will be applied against the Government: (1) A false
representation or wrongful, misleading silence by the party
against whom the opposing party seeks to invoke the doctrine; (2)
an error in a statement of fact and not in an opinion or
statement of law; (3) ignorance of the true facts; (4) reasonable
reliance on the acts or statements of the one against whom
estoppel is claimed; and (5) adverse effects of the acts or
statement of the one against whom estoppel is claimed. See
Kronish v. Commissioner, supra, and cases cited therein. Thus,
the doctrine requires a finding that a claimant relied on the
Government’s representations and suffered a detriment because of
that reliance. Norfolk S. Corp. v. Commissioner, 104 T.C. 13, 60
(1995), affd. 140 F.3d 240 (4th Cir. 1998).
- 39 -
In addition to the traditional elements of equitable
estoppel, the Court of Appeals for the Ninth Circuit requires the
party seeking to apply the doctrine against the Government to
prove affirmative misconduct. See Purcell v. United States, 1
F.3d 932, 939 (9th Cir. 1993), and cases cited. The aggrieved
party must prove “‘affirmative misconduct going beyond mere
negligence’” and, even then, “‘estoppel will only apply where the
government’s wrongful act will cause a serious injustice, and the
public’s interest will not suffer undue damage by imposition of
the liability.’” Purer v. United States, 872 F.2d 277, 278 (9th
Cir. 1989) (quoting Wagner v. Director, Fed. Emergency Mgmt.
Agency, 847 F.2d 515, 519 (9th Cir. 1988)). Affirmative
misconduct requires “ongoing active misrepresentations” or a
“pervasive pattern of false promises,” as opposed to an isolated
act of providing misinformation. Watkins v. United States Army,
875 F.2d 699, 708 (9th Cir. 1989). Affirmative misconduct is a
threshold issue to be decided before determining whether the
traditional elements of equitable estoppel are present. See
Purcell v. United States, supra at 939.
b. Collateral Estoppel
Collateral estoppel basically precludes parties and their
privies from relitigating issues actually and necessarily
litigated and decided in a final prior judgment by a court of
competent jurisdiction. Peck v. Commissioner, 90 T.C. 162, 166
- 40 -
(1988), affd. 904 F.2d 525 (9th Cir. 1990). For collateral
estoppel to apply in a factual context, the following conditions
must be met: (1) The issue in the second suit must be identical
in all respects with the one decided in the first suit; (2) there
must be a final judgment rendered by a court of competent
jurisdiction; (3) collateral estoppel may be invoked against
parties and their privies to the prior judgment; (4) the parties
must have actually litigated the issues and the resolution of
these issues must have been essential to the prior decision; and
(5) the controlling facts and applicable legal rules must remain
unchanged. Peck v. Commissioner, supra at 166-167.
The Supreme Court has broadened the scope of collateral
estoppel beyond its common-law limits by abandoning the
requirement of mutuality of the parties, and has conditionally
approved the “offensive” use of collateral estoppel by a
plaintiff who was not a party to the prior lawsuit. See Parklane
Hosiery Co. v. Shore, 439 U.S. 322, 331 (1979). However,
offensive use of collateral estoppel only applies when a
plaintiff seeks to foreclose a defendant from relitigating an
issue the defendant previously litigated unsuccessfully in
another action against the same or a different party. Id. at 326
n.4. Further, the Supreme Court subsequently held that nonmutual
offensive collateral estoppel could not be applied to preclude
- 41 -
the Government’s relitigation of the issue presented. United
States v. Mendoza, 464 U.S. 154, 159-164 (1984).
While some lower courts have indicated that the language in
Mendoza is somewhat ambiguous, the Tax Court and the Court of
Appeals for the Ninth Circuit, to which this case is appealable,
have both on numerous occasions interpreted Mendoza as holding
that nonmutual offensive collateral estoppel may not be invoked
against the Government. Natl. Med. Enter., Inc. v. Sullivan, 916
F.2d 542, 545 (9th Cir. 1990); Black Constr. Corp. v. INS, 746
F.2d 503, 504 (9th Cir. 1984); Kroh v. Commissioner, 98 T.C. 383,
402 (1992); McQuade v. Commissioner, 84 T.C. 137, 144 (1985);
Barrett-Crofoot Invs. v. Commissioner, T.C. Memo. 1994-59.
c. Judicial Estoppel
Judicial estoppel is a doctrine that prevents parties in
subsequent judicial proceedings from asserting positions
contradictory to those they previously have affirmatively
persuaded a court to accept. United States ex rel. Am. Bank v.
C.I.T. Constr., Inc., 944 F.2d 253, 257-259 (5th Cir. 1991);
Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 598-599 (6th Cir.
1982). The Tax Court, as well as the Courts of Appeals for the
Ninth Circuit, have accepted the doctrine of judicial estoppel.
See Helfand v. Gerson, 105 F.3d 530, 534 (9th Cir. 1997);
Huddleston v. Commissioner, 100 T.C. 17, 28-29 (1993).
- 42 -
The doctrine of judicial estoppel focuses on the
relationship between a party and the courts, and it seeks to
protect the integrity of the judicial process by preventing a
party from successfully asserting one position before a court and
thereafter asserting a completely contradictory position before
the same or another court merely because it is now in that
party’s interest to do so. Edwards v. Aetna Life Ins. Co., supra
at 599; Huddleston v. Commissioner, supra at 26. Whether or not
to apply the doctrine is within the court’s sound discretion. It
should be applied with caution in order “to avoid impinging on
the truth-seeking function of the court because the doctrine
precludes a contradictory position without examining the truth of
either statement.” Daugharty v. Commissioner, T.C. Memo. 1997-
349 (quoting Teledyne Indus., Inc. v. NLRB, 911 F.2d 1214, 1218
(6th Cir. 1990)).
Because judicial estoppel focuses primarily on the
relationship between a party and the courts, it is
distinguishable from equitable estoppel, which focuses primarily
on the relationship between the parties themselves. Teledyne
Indus., Inc. v. NLRB, supra at 1219-1220. Judicial estoppel
generally requires acceptance by a court of the prior position
and does not require privity or detrimental reliance of the party
seeking to invoke the doctrine. Id.; Huddleston v. Commissioner,
- 43 -
supra at 26. Acceptance by a court does not require that the
party being estopped prevailed in the prior proceeding with
regard to the ultimate matter in dispute, but rather only that a
particular position or argument asserted by the party in the
prior proceeding was accepted by the court. In re Cassidy, 892
F.2d 637, 641 (7th Cir. 1990); Edwards v. Aetna Life Ins. Co.,
supra at 599 n.5; Huddleston v. Commissioner, supra at 26.
Although judicial estoppel is somewhat similar to collateral
estoppel, there are substantial differences between the two
doctrines. See Teledyne Indus., Inc. v. NLRB, supra at 1220.
Thus, judicial estoppel may apply in a case “where neither
collateral estoppel nor equitable estoppel * * * would
apply.” Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166-1167 (4th
Cir. 1982).
C. Discussion of Partnership Level Theft Loss Deductions
1. Determination of Whether the Sheep Partnerships Were
Victims of Theft
As previously stated, in order to sustain a theft loss
deduction, petitioners must prove the following elements: (1)
That each sheep partnership was the victim of a theft pursuant to
the law of the jurisdiction where the loss was sustained; (2) the
year that each partnership discovered the loss from the theft;
and (3) the amount of theft loss that each partnership suffered.
See Yates v. Commissioner, T.C. Memo. 1988-565.
a. The Occurrence of a Theft
Petitioners have the burden of establishing a theft of
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partnership property from each of the sheep partnerships.
Petitioners rely on Jay Hoyt’s Federal conviction and three
Oregon statutes that are similar to the Federal criminal statutes
Jay Hoyt was convicted of violating as proof of the occurrence of
a theft from the partnerships. On the premise that Jay Hoyt’s
conviction establishes a theft from the individual investors,
petitioners claim that the partnerships were the victims of Jay
Hoyt’s theft, because “a theft from all the partners, is a theft
from the partnerships.” Finally, petitioners cite various cases
for propositions that they assert establish a theft from the
partnerships.
The Court is mindful that throughout all of petitioners’
arguments dealing with a theft loss, they treat “partners” and
“partnerships” as the same, making no clear distinction between
these terms. As set forth infra pp. 51-55, a clear distinction
exists under both California and Nevada law. Further, a
distinction between partners and partnerships exists under
Federal law. See sec. 6226.
Because all the partnerships at issue are subject to the
provisions enacted in the Tax Equity & Fiscal Responsibility Act
of 1982 (TEFRA), Pub. L. 97-248, sec. 402(a), 96 Stat. 648, our
jurisdiction is limited exclusively to the determination of the
tax treatment of partnership items for the partnership year to
which the FPAA relates. See sec. 6226; infra pp. 108-109. We
- 45 -
have no jurisdiction in this partnership level proceeding over
nonpartnership items, which can only be determined at the
individual partner level. Affiliated Equip. Leasing II v.
Commissioner, 97 T.C. 575, 576 (1991).
The Court shall not allow petitioners to freely interchange
the partners with the partnerships to suit their arguments.
Accordingly, when addressing the petitioners’ theft loss
arguments, the Court will apply the distinction between the
partners and the partnerships as required by law.
(i) Jay Hoyt’s Conviction of Federal Crimes
On February 12, 2001, Jay Hoyt was convicted of 1 count of
conspiracy to commit fraud, 31 counts of mail fraud, 3 counts of
bankruptcy fraud, and 17 counts of money laundering. See United
States v. Barnes, et al., No. CR-98-529-JO-04 (D. Or. Feb. 12,
2001). The indictment charged Jay Hoyt and others with
conspiring to “defraud thousands of investors” by selling
investment interests “by means of false promises and
representations.” The U.S. District Court described Jay Hoyt’s
crimes as “the most egregious white collar crime committed in the
history of the State of Oregon.” United States v. Hoyt, 47 Fed.
Appx. 834, 836 (9th Cir. 2002). Jay Hoyt was ordered to pay
restitution to each victim (investor-partner) in an amount equal
to the total payments each individual made to the Hoyt
organization.
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Although Jay Hoyt’s indictment dealt with fraud perpetrated
against individual investors through the use of cattle
partnerships only, the judgment ordered restitution to all the
partners in the cattle and sheep partnerships. By definition,
restitution is the “act of making good or giving equivalent for
any loss, damage, or injury.” Black’s Law Dictionary 1180 (5th
ed. 1979). Further, a general obligation exists for a person who
defrauds another to make restitution to the person defrauded.
Kreimer v. Commissioner, T.C. Memo. 1983-672. Accordingly, the
U.S. District Court would not have ordered Jay Hoyt to pay
restitution to the sheep partners had they not been victims of
his crimes. Moreover, in Jay Hoyt’s appeal of his conviction, he
did not argue that the U.S. District Court erred by including the
sheep partners in the restitution order. See United States v.
Hoyt, supra.
Because the sheep partners were included in the restitution
order and all the sheep partnerships were formed, organized, and
operated in essentially the same fashion as the cattle
partnerships, we conclude that Jay Hoyt defrauded the individual
investors in the nine sheep partnerships in the same manner that
he was convicted of defrauding the individual investors in the
cattle partnerships.
Petitioners state that the “conviction established Hoyt’s
theft from all his partners and partnerships.” Petitioners
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assert that the indictment in the criminal case provides
sufficient facts to establish the existence of a theft for
purposes of a theft loss. As previously mentioned, under TEFRA
we have no jurisdiction in this partnership level proceeding over
nonpartnership items, which can only be determined at the
individual partner level. See sec. 6226; Affiliated Equip.
Leasing II v. Commissioner, supra at 576. Accordingly, we
analyze each of the crimes Jay Hoyt was convicted of committing
to determine whether the partnerships are entitled to a theft
loss deduction.
Jay Hoyt was convicted of one count of conspiracy to commit
mail fraud and multiple counts of mail fraud, but these criminal
acts were perpetrated against prospective and current partners,
not the partnerships. Nothing in the indictment indicates that
the partnerships were the victims of the conspiracy or mail fraud
committed by Jay Hoyt, nor was any restitution awarded to the
partnerships. Clearly, the victims of these crimes for which Jay
Hoyt was convicted and ordered to pay restitution were
exclusively individual investors. Crimes perpetrated on the
partnerships simply were not the nature or focus of the Federal
conspiracy and mail fraud investigation and prosecution.
Jay Hoyt was convicted of 31 counts of mail fraud for using
the USPS to execute his intentional scheme to defraud and to
obtain money through false promises and false pretenses. Each of
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the 31 counts corresponds to a particular mailing either sent by
the Hoyt organization from Burns, Oregon, to a partner in one of
the cattle partnerships or a check sent by a partner in one of
the cattle partnerships to Burns, Oregon. These individual
mailings collectively establish that the victims of the mail
fraud were the individual cattle partners who received mailings
from the Hoyt organization and sent checks to the Hoyt
organization. For the sheep partnerships all to be victims of
mail fraud, each partnership would have had to receive some mail
from the Hoyt organization and then part with partnership
property based on false promises and false pretenses contained
within the mailing. No evidence was presented establishing that
these events ever occurred. Further, as previously stated, the
partnerships were not included in the indictment as victims of
the mail fraud.
The indictment charged and the prosecution proved that Jay
Hoyt and others made false representations and promises “to
prospective investors and current investors in order to obtain
money from them” using the “investors simply as sources of cash.”
The fraud was perpetrated on the investors; Jay Hoyt knew for
many years he did not have the total amount of livestock that he
claimed and could not meet the various guarantees he promised,
yet he continued to create new partnerships and fictitious
livestock as a scheme and artifice to defraud individuals. The
- 49 -
fact that Jay Hoyt used the partnerships as an integral part of
perpetuating fraud against individual investors through false
promises and false pretenses does not establish a theft on the
partnership level.
Petitioners cannot rely on Jay Hoyt’s conspiracy to commit
fraud and mail fraud convictions to establish theft from the
partnerships by inserting a different set of victims from those
stated in the indictment and proven at the criminal trial.
Because we determine that Jay Hoyt’s fraud was perpetrated on the
individual partners, we hold that his conviction for conspiracy
to commit fraud and mail fraud does not establish that a
partnership level theft occurred.
Petitioners make no mention of Jay Hoyt’s conviction for
bankruptcy fraud. As to this charge, Jay Hoyt was convicted of
knowingly and fraudulently (1) concealing property from
creditors, the U.S. Trustee, and other officers of the court, (2)
making material false oaths, accounts, and testimony, and (3)
making material false declarations, certificates, verifications,
or statements under penalty of perjury. There is no evidence in
the record that any of the property concealed was sheep
partnership property. Petitioners do not specifically assert,
the record does not contain evidence, nor do we find that the
conviction for bankruptcy fraud establishes a theft on the sheep
partnerships for any of the years at issue.
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Jay Hoyt was also convicted of money laundering for
concealing from the bankruptcy trustee over $1,600,000 in funds
received from investors after June 5, 1997, that were deposited
into First Security Bank and later withdrawn in varying
increments. The 17 money laundering counts for which Jay Hoyt
was convicted each represent individual checks drawn on the First
Security Bank account that were each (1) made payable to Hoyt
related partnerships or individuals, and (2) of a value greater
than $10,000. The dates for each of these 17 checks range from
on or about June 30, 1997, through January 15, 1998.
Accordingly, the money laundering conviction, which was based on
activities that commenced in 1997, cannot possibly be used as
evidence to establish a theft prior to that date. Since 1996 is
the last year at issue for all of the nine sheep partnerships,
the money laundering conviction in no way establishes a theft
from any of the sheep partnerships for any of the years at issue.
Rejecting the arguments advanced by petitioners, the Court
holds that none of the Federal crimes committed by Jay Hoyt
establish that a section 165 theft was perpetrated on the
partnerships for any of the years at issue. Accordingly, a theft
from each partnership of partnership property must be proven
under another theory for petitioners to establish that the
partnerships were the victims of theft.
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(ii) Petitioners’ Claim That a Theft From the
Partners is a Theft From the Partnerships
Petitioners contend that even if the Court finds that Jay
Hoyt’s Federal conviction does not establish theft on the
partnership level, at a minimum, the conviction establishes a
theft from the partners. Based on this contention and their
assertion that the partners are synonymous with the partnerships,
petitioners conclude that the partnerships sustained a theft.
To reach this conclusion, petitioners argue that: (1) Under
State law, a partnership is its partners; (2) since the
partnerships are aggregates of all the partners, and all the
partners were defrauded, then the partnerships were defrauded;
(3) stealing from partners by using the partnerships as the
vehicle for fraud is indistinguishable from stealing from the
partnerships; and (4) stealing from the partnerships is a theft
from the partners because the partners jointly own the
partnership assets. Petitioners have failed to cite any
authority supporting these arguments.
Petitioners state that the partnership law of Oregon,
Nevada, and California arguably applies to the partnerships at
issue. However, only California and Nevada law applies, because
eight of the sheep partnerships were formed under and governed by
California law, with the remaining sheep partnership formed under
and governed by Nevada law.
In particular, RCR #1, RCR #2, RCR #3, and RCR #4 were
- 52 -
formed in California as limited partnerships. RCR #5, RCR #6,
OGT 87, and OGT 90 were formed in California as general
partnerships, and RCR #7 was formed in Nevada as a general
partnership.
Petitioners’ argument that under State law a partnership is
its partners provides no legal support for their conclusion that
the partnerships were victims of theft. Under California limited
partnership law, a limited partnership is a partnership formed by
two or more persons under California law and having one or more
general partners and one or more limited partners. Cal. Corp.
Code secs. 15501, 15611(1) (West 1991 & Supp. 2002). Pursuant to
California and Nevada general partnership law, a partnership is
an association of two or more persons to carry on as co-owners a
business for profit. Cal. Corp. Code sec. 15006(1); Nev. Rev.
Stat. Ann. sec. 87.060 (Michie 1999 & Supp. 2001). It is obvious
by definition that a partnership comprises of its partners.
However, no conclusion can be drawn from this fact alone that a
theft from the partners is a theft from the partnerships.
Petitioners’ argument that the partnerships were defrauded
because the partnerships are aggregates of all the partners who
were defrauded is unsupported by California and Nevada law. This
argument is a refined rendition of petitioners’ first argument
and is based on their conclusion that for all purposes a
partnership is an aggregate of its individual partners.
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The “aggregate theory” and the “entity theory” are two
theories regarding the basic nature of a partnership. The
aggregate theory considers a partnership to be no more than an
aggregation of the individual partners. Whereas, the entity
theory characterizes a partnership as a separate entity distinct
from its partners. Whether the aggregate theory or the entity
theory should be applied for all purposes has not ultimately been
determined. Unger v. Commissioner, T.C. Memo. 1990-15, affd. 936
F.2d 1316 (D.C. Cir. 1991). The theory employed varies from case
to case, often depending on the issue to be decided. Id.
Under the aggregate approach, each partner has an interest
in specific partnership property. Unger v. Commissioner, 936
F.2d 1316, 1318 (D.C. Cir. 1991), affg. T.C. Memo. 1990-15. In
contrast, under the entity approach, partnership property is
attributable to the partnership only, not to the partners. Id.
The California and Nevada partnership law deals with
partnerships as aggregates for certain purposes and as entities
for others. The definition of a partnership as an “association
of two or more persons” to carry on as co-owners a business for
profit suggests that a partnership is an aggregate of its
members. However, the fact that specific partnership property is
a distinct category of property indicates the entity approach
would apply to partnership assets. See Stilgenbaur v. United
- 54 -
States, 115 F.2d 283, 286 (9th Cir. 1940); State v. Elsbury, 63
Nev. 463, 467-468, 175 P.2d 430, 433 (1946).
The entity approach (as opposed to the aggregate approach)
is in accord with the clear intent of the California and Nevada
partnership law, that partnership property is a separate and
distinct category of property. Accordingly, petitioners cannot
apply the aggregate approach to conclude that the partnerships
were defrauded.
Petitioners’ argument that Jay Hoyt’s use of the
partnerships to perpetrate fraud on the partners is tantamount to
stealing from the partnerships is without merit. The record
establishes that Jay Hoyt defrauded the individual investors, not
the partnerships, of their money. As previously mentioned, the
fact that Jay Hoyt utilized the partnerships as a guise to
defraud individuals does not establish a theft on the partnership
level.
Petitioners’ argument that the partners jointly own the
partnership assets is unsupported by the law. Under California
limited and general partnership law and Nevada general
partnership law, a partner’s interest in a partnership is
personal property and the partner has no interest in specific
partnership property. See Evans v. Galardi, 16 Cal. 3d 300, 307,
546 P.2d 313, 319 (1976); Stilgenbaur v. United States, supra at
286; State v. Elsbury, 63 Nev. at 467-468, 175 P.2d at 433.
- 55 -
Specific partnership property is a distinct category of
property, separate from a partner’s interest in the partnership.
Stilgenbaur v. United States, supra. A partner’s personal
property interest in the partnership grants the partner a right
to his share of profits and surplus, not an ownership interest to
any particular portion of the partnership assets. Comstock v.
Fiorella, 260 Cal. App. 2d 262, 265, 67 Cal. Rptr. 104, 106
(1968). Contrary to petitioners’ assertion, under California and
Nevada partnership law, the partners do not jointly own the
partnership assets. Therefore, petitioners’ argument fails to
establish a theft on the partnership level.
The arguments presented by petitioners fail to recognize the
legal distinction between a partnership and its partners. Thus
their claim that a theft from the partners is a theft from the
partnerships is without merit and unsupported by the law.
(iii) Petitioners’ Claim That a Theft Occurred
Under State Law
Petitioners assert that Jay Hoyt’s criminal acts, for which
he was convicted under Federal law in Oregon, constitute theft
under similar Oregon statutes. Namely, Oregon Revised Statutes
(ORS): (1) Section 164.085, theft by deception; (2) section
164.170, laundering a monetary instrument; and (3) section
164.172, engaging in a financial transaction in property derived
- 56 -
from unlawful activity.13 Petitioners rely exclusively on Jay
Hoyt’s Federal conviction in Oregon to establish the elements of
a theft under State law. However, since we held above that
petitioners cannot rely solely on Jay Hoyt’s conviction to
establish theft from the partnerships, petitioners must prove
they were the victims of a theft under the applicable law of the
jurisdiction where the alleged thefts occurred.
Petitioners state that they rely on the Oregon criminal
statutes because Jay Hoyt was convicted of Federal crimes in
Oregon and each partnership was formed and operated in Oregon.
As we previously determined, the specific crimes Jay Hoyt was
convicted of violating in Oregon were perpetrated against
individual investors and were not thefts of partnership property.
Further, petitioners’ claim that the sheep partnerships were
formed and operated in Oregon is factually incorrect. As
previously discussed, eight of the sheep partnerships at issue
were formed in California and one partnership was formed in
Nevada.
Not only were a majority of the partnerships formed in
California, but the record shows that the majority of sheep
operations were performed in California. All of the agreements
were entered into in California between California or Nevada
partnerships and Barnes Ranch, a sole proprietorship operated in
13
Or. Rev. Stat. secs. 164.170 and 164.172 (2001), are
both money laundering statutes.
- 57 -
California. The record establishes that any sheep that actually
existed were located on Barnes Ranch in Sacramento, California.
In addition, for all the years at issue, the record shows that
the checks from individual sheep partners were received at the
Elk Grove, California, office and deposited into the RCR account
or the pooling account at the bank located in Elk Grove,
California.
While the record contains evidence that money was deposited
into bank accounts in California during the years at issue, no
evidence was presented showing that the money ever left
California. There is no evidence in the record to establish that
any of the investor funds were ever transferred to the Hoyt
office in Burns, Oregon, or deposited into an Oregon bank account
during any of the years at issue. Further, petitioners failed to
present any evidence that any partnership property was illegally
taken from anywhere in Oregon during any of the years at issue.
Without any evidence to link the investor funds to Oregon,
petitioners cannot possibly prove that Oregon is the jurisdiction
where the alleged thefts occurred. Therefore, due to the lack of
evidence presented on this issue, petitioners have failed to
establish that a theft of partnership property occurred within
the State of Oregon during any of the years at issue. However,
in light of Jay Hoyt’s criminal activities in Oregon, we shall
analyze the three Oregon statutes cited by petitioners to
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determine whether any illegal activity occurred in Oregon
sufficient to establish petitioners were the victims of a theft.
We believe that petitioners equate the ORS section 164.085,
theft by deception statute, to the Federal conspiracy to commit
fraud and mail fraud statutes Jay Hoyt was convicted of
violating. To violate the Oregon theft by deception statute, a
person, with intent to defraud, must obtain the property of
another by: (1) Creating or confirming another’s false
impression of law, value, intention or other state of mind which
the actor does not believe to be true; (2) failing to correct a
false impression which the person previously created or
confirmed; (3) preventing another from acquiring information
pertinent to the disposition of the property involved; (4)
selling or otherwise transferring or encumbering property,
failing to disclose a lien, adverse claim or other legal
impediment to the enjoyment of the property; or (5) promising
performance which the person does not intend to perform or knows
will not be performed. Therefore, to establish a theft under the
Oregon statute cited by petitioners, they must prove that Jay
Hoyt, with intent to defraud each partnership by means of at
least one of the five methods stated in the theft by deception
statute, deceptively obtained partnership property each year from
each partnership equal to the amount of total cash the investors
contributed in each of those years.
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Petitioners state in their brief that the sheep partnerships
entered into “transactions with Hoyt and Barnes upon having been
deceived as to the transaction.”14 The record does not support
petitioners’ assertion that the partnerships were deceived in any
way. Although Jay Hoyt and David Barnes did enter into various
partnership agreements and transactions with the intent to
deceive, the victims of their intentional deception were the
individual investors, not the partnerships. Many of the
documents created by the partnership transactions were merely
instruments intentionally used to defraud individual investors by
creating false impressions and making promises known not to be
true.
As previously stated, petitioners readily admit that
investors would not have parted with their money if not for Jay
Hoyt’s deceptive practices. Petitioners’ admission further
emphasizes that the thefts occurred when the individuals were
deceived into parting with their money. The partnerships were
not victims of those deceptive practices and were not deceived by
those practices into parting with any partnership property.
Petitioners fail to show how Jay Hoyt’s theft by deception
perpetrated against the individual partners constitutes a theft
of partnership property under the law of Oregon.
14
Statements in a brief that are not supported by
testimony or documents introduced at trial are not evidence. See
Rule 143(b); Niedringhaus v. Commissioner, 99 T.C. 202, 217 n.7
(1992).
- 60 -
The record is void of any evidence to establish that Jay
Hoyt or anyone else violated the Oregon theft by deception
statute with respect to the partnerships. Accordingly,
petitioners have not met their burden of establishing a theft on
the partnership level for section 165 purposes applying the
Oregon theft by deception statute.
Petitioners also cite the Oregon money laundering statutes,
Or. Rev. Stat. secs. 164.170 and 164.172 (2001), as establishing
a theft from the partnerships. Other than providing evidence of
Jay Hoyt’s conviction for violation of a similar Federal statute,
petitioners fail to present any evidence showing how the Oregon
statutes establish a theft on the sheep partnerships.
Petitioners have not provided evidence that Jay Hoyt or
anyone else conducted a financial transaction with proceeds of an
unlawful activity of a sum equal to the total amount invested by
the partners in each of the years at issue. Unlike the
indictment and evidence presented at Jay Hoyt’s Federal criminal
trial, petitioners failed to present any evidence that Jay Hoyt
or anyone else during any of the years at issue knowingly engaged
in a financial transaction in Oregon of a value greater than
$10,000 in property using the proceeds of any unlawful activity.
Additionally, both of the Oregon money laundering statutes
require proof that an underlying unlawful activity was committed
to obtain the proceeds involved in the financial transaction.
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Yet, petitioners did not specify which alleged unlawful activity
was committed to obtain the proceeds.
Jay Hoyt’s indictment specifically stated the underlying
unlawful activity committed in Oregon and presented 17 specific
monetary transactions (negotiated checks) constituting money
laundering.15 Because those checks bore dates in 1997 or 1998,
each check was negotiated after the tax years here at issue. See
supra p. 50. Petitioners did not introduce any checks or similar
evidence of any monetary transactions that were negotiated during
any of the years at issue.
Petitioners have not proven that any of the partnerships
were victimized during the years at issue by a violation of
either of the Oregon money laundering statutes. Petitioners
failed to present any evidence proving the elements of either
crime. Thus, by merely citing the two Oregon money laundering
statutes and not proving the elements of those crimes,
petitioners have not established a theft on the partnership level
for any of the years at issue.
(iv) Analysis of Case Law Cited by Petitioners
We now address the following cases which petitioners rely
upon as authority to support their various arguments that the
sheep partnerships are entitled to a theft loss deduction.
15
The specified unlawful activities used to establish
money laundering at Jay Hoyt’s criminal trial were mail fraud and
bankruptcy fraud.
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Petitioners cite: (1) Nichols v. Commissioner, 43 T.C. 842
(1965), for the general proposition that the “partnerships are
entitled to a theft loss deduction” because a “promoter’s fraud
in obtaining money from investors in a tax shelter constitutes
theft under Section 165”; (2) Cummin v. United States, 73 AFTR 2d
2092 (D.N.J. 1994), for the propositions that (a) “the
partnerships are entitled to a business theft loss” where the
partnerships’ transactions lack “economic substance by reason of
fraud”, and (b) “the Tax Court has contemplated there will be
circumstances where a partner’s out-of-pocket loss in a tax
shelter is deductible as a theft loss”; and (3) Girgis v.
Commissioner, T.C. Memo. 1987-556, affd. in part, revd. in part,
and remanded 888 F.2d 1386 (4th Cir. 1989), and Harrell v.
Commissioner, T.C. Memo. 1978-211, for the proposition that if it
is proven that “the money invested by a partner in a partnership
is lost to another partner’s theft of the same, the partnership
has incurred a loss.”
Petitioners’ reliance on Nichols v. Commissioner, supra, is
misplaced. Nichols is distinguishable from the instant cases and
is not persuasive in establishing that a theft loss occurred at
the partnership level.
The taxpayers in Nichols were individuals who invested in a
tax shelter and proved that the promoter of the investment did
not execute the transactions for which the investors bargained.
- 63 -
In Nichols, the taxpayers alleged and proved numerous fraudulent
misrepresentations by the promoter which induced the individuals
to part with their money and which constituted theft under
applicable State and Federal law.
Although Jay Hoyt committed acts similar to the promoter in
Nichols, the critical difference is that Nichols was a deficiency
suit in which the petitioners were individual investors who
established they were the victims of a theft of their own out-of-
pocket expenditures. By contrast, the instant case is a TEFRA
proceeding brought on behalf of the partnerships seeking to
deduct as a theft loss from the partnerships the total amount of
cash fraudulently obtained from the investors.
As previously discussed, a theft from the partners is not a
theft from the partnerships, and Nichols cannot be cited as
authority to make this leap. The individual investors in Nichols
were allowed a theft loss deduction solely because they met all
the required elements of section 165. Nichols certainly does not
hold that a partnership is entitled to a theft loss deduction
when the individual investors are swindled by the promoter’s
fraud.
Likewise, the unpublished opinion in Cummin v. United
States, supra, does not support petitioners’ conclusion that the
sheep partnerships are entitled to a theft loss deduction.
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As in Nichols, at issue in Cummin were theft loss deductions
of individual investors, not of partnerships. Exclusively
analyzing a theft loss on the individual investor level, Cummin
never addresses the issue of a partnership level theft loss
deduction. We agree with respondent and find that Cummin simply
is not authority for petitioners’ proposition that “the
partnerships are entitled to a business theft loss.”
In their reply brief, petitioners claim that they cited
Cummin for the proposition that “the Tax Court has contemplated
there will be circumstances where a partner’s out-of-pocket loss
in a tax shelter is deductible as a theft loss.” This later
proposition adds nothing to petitioners’ arguments and is not
authority to allow a partnership level deduction where the
individual partners are swindled.
Finally, petitioners argue that both Girgis v. Commissioner,
T.C. Memo. 1987-556, and Harrell v. Commissioner, T.C. Memo.
1978-211, stand for the proposition that a partnership level loss
is incurred when money invested by a partner in a partnership is
taken by another partner. While both of these cases deal with
claims to partnership level losses, neither case stands for the
proposition set forth by petitioners. Further, the facts in both
of these cases are distinguishable from the facts in the instant
case because: (1) The theft by the partner in Girgis was an
embezzlement of partnership receipts and not of money invested by
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a partner; (2) the taxpayer in Harrell failed to prove that his
partner embezzled any partnership funds, so the Court allowed the
taxpayer an ordinary loss, not a theft loss, for his distributive
share of partnership loss in an amount equal to his investment
because all partnership assets had been irretrievably lost; and
(3) neither of the partners in Girgis or Harrell was fraudulently
induced into investing or becoming a partner in his respective
partnership.
Both Girgis and Harrell indicate that a partner’s
embezzlement of partnership funds gives rise to a partnership
level deduction. Embezzlement of funds from the sheep
partnerships, if proven, could be a theft within the purview of
section 165 for which the partnerships would be entitled a
deduction. See Marine v. Commissioner, 92 T.C. 958, 976-977
(1989). However, petitioners in the instant case have failed to
prove that an embezzlement of partnership property occurred
during any of the years in issue. Jay Hoyt was never charged
with such an embezzlement, and the record does not support such a
finding. Neither Girgis or Harrell supports petitioners’
argument that the sheep partnerships are entitled to theft loss
deductions for any of the years at issue.
b. The Year of Discovery Requirement
The year of discovery requirement would be relevant in this
case only if the petitioners had established a theft loss at the
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partnership level, which they have not. Assuming, arguendo, that
petitioners had proven that the partnerships were the victims of
a partnership level theft, petitioners still failed to satisfy
the year of discovery element required to claim a theft loss
deduction.
Petitioners acknowledge that pursuant to section 165(e), a
taxpayer may deduct a theft loss only in the tax year in which
the taxpayer discovers the loss. Further, petitioners concede
that the partnerships’ discovery of the alleged thefts occurred
in 1997 or 1998, which is after the last year at issue in this
case. However, petitioners assert that respondent is equitably
estopped from denying the theft loss deduction in each of the
years at issue regardless of the actual year of discovery. In
addition, petitioners argue that under Rod Warren Ink v.
Commissioner, 912 F.2d 325 (9th Cir. 1990), this Court “may
depart from the literal meaning of [section 165(e)] regarding the
year of discovery in order to avoid unintended negative
consequences to the taxpayer and to effectuate Congress’ intent.”
Petitioners’ sole purpose in seeking a deviation from the
discovery date requirements of section 165(e) to deduct the theft
losses in each of the years at issue is to distribute losses from
the partnerships to the individual partners, thereby reducing the
amount of interest partners owe on deficiencies related to the
TEFRA partnership adjustments.
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(i) Application of Equitable Estoppel
Petitioners argue that the doctrine of equitable estoppel
precludes respondent from relying on section 165(e) as a basis
for disallowing their claims to theft loss deductions.
Specifically, petitioners argue that respondent’s actions and
inactions in the course of auditing all the Hoyt organization
partnerships since the early 1980s resulted in the concealment of
material evidence from the partnerships and misleading silence to
the partnerships. They claim that through the audit process
respondent obtained information of Jay Hoyt’s fraud, yet failed
to timely inform them of this fraudulent activity. Further, they
allege that they relied to their detriment on respondent’s
concealment or misleading silence relating to the fraud.
As a threshold matter, petitioners must prove affirmative
misconduct by the Government in addition to the traditional
elements of equitable estoppel. See Purcell v. United States, 1
F.3d 932, 939 (9th Cir. 1993). Petitioners have failed to show
the traditional elements of equitable estoppel, much less
affirmative misconduct by respondent. They presented no evidence
of ongoing active misrepresentations or a pervasive pattern of
false promises by respondent. Having failed to show affirmative
misconduct by the Government, we conclude that petitioners cannot
assert equitable estoppel against respondent to deviate from the
year of discovery requirement in section 165(e).
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And, contrary to petitioners’ assertion that the traditional
elements of equitable estoppel have been met, thus warranting a
departure from the year of discovery requirement in section
165(e), the record reflects that respondent did not misrepresent
or conceal from the partnerships or the partners any material
facts obtained in the audits. Respondent audited the various
partnerships from 1984 through 1996, and reported its findings to
the partnerships and partners. Respondent issued all notices of
beginning of administrative proceeding, FPAAs, and prefiling
notices in a timely manner in accordance with the Internal
Revenue Code. According to petitioners, respondent “advised the
partners that their partnerships were being audited and adjusted,
because [respondent] determined the partnerships were shams and
constituted improper tax shelters.”
Petitioners, nonetheless, fault respondent for not doing
more to stop the fraud perpetrated by Jay Hoyt. They assert that
respondent, well before 1993, should have acted more effectively
to protect the partners and prospective investors from Jay Hoyt’s
fraudulent activities. Our review of the record discloses the
substantial difficulties that respondent encountered in obtaining
a sufficient amount of information to conclude the existence of a
fraud prior to 1993.
By the early 1980s, respondent generally disallowed the tax
benefits the cattle and sheep partnerships and their partners
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claimed. Further, respondent engaged in almost continuous and
protracted litigation with the partnerships and partners over the
disallowance of partnership tax benefits. However, the decision
in Bales v. Commissioner, T.C. Memo. 1989-568, set back
respondent’s efforts, as the decision rejected respondent’s
economic sham theory and allowed the Bales partners many of their
claimed tax benefits.
Although in 1989, respondent suspected that Jay Hoyt had
been selling a large number of fictitious cattle to the cattle
partnerships, the evidence respondent possessed at that time did
not confirm this suspicion. As a result, respondent decided that
during the examination of the post-1986 cattle and sheep
partnership returns, a count and inspection of all the cattle and
sheep were essential. From the fall 1992 through spring 1993
livestock count and inspection, respondent determined that the
Hoyt organization had greatly overstated the number and value of
the livestock owned by the partnerships. As a result of the
count and inspection, respondent believed by February 1993 that
he possessed sufficient evidence to support the issuance of
prefiling notices and freezing tax refunds claimed by partners.
Following the respondent’s issuance of prefiling notices to
the partners in February 1993, and the completion of the count
and inspection of the cattle and sheep, the Examination Division
on or about December 30, 1993, issued letters to all the partners
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in which it warned them that IRS personnel had concluded and
determined that: (1) A number of fictitious breeding cattle and
sheep had been sold to the Hoyt cattle and sheep partnerships;
and (2) Jay Hoyt and the Hoyt organization had overstated both
the numbers and value of the purported livestock that the
partnerships allegedly owned.
In the Examination Division letter sent to each partner,
respondent specifically informed the partners of the problems
that respondent had uncovered in the Hoyt organization’s tax
shelter program as a result of the respondent’s count and
inspection of the cattle and sheep. The letter provided the
partners with sufficient information to place them on notice that
fraudulent activity might be taking place. By providing the
partners with their findings, respondent discharged any duty it
arguably had to the partnerships and partners, as it was then up
to them to decide whether to take advantage of this
information.16 E.g., Wintner v. Commissioner, T.C. Memo. 1977-
144 (noting that IRS agents had told the taxpayer or put the
taxpayer on notice about the irregularities the agents had
uncovered in examining the books and records of the taxpayer’s
business; concluding further that having provided the taxpayer
16
Certainly by 1993, the partners also knew or should have
known that the IRS might: (1) Disallow the tax benefits that the
Hoyt cattle and sheep partnerships and their partners claimed;
and (2) attempt to uphold such disallowances and partnership
adjustments in any tax litigation that the partnerships and
partners commenced.
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with this information, the agents discharged any duty they owed
the taxpayer and did not misrepresent or conceal any material
facts concerning the embezzlement by the taxpayer’s employee).
Notwithstanding their receipt of the December 30, 1993,
Examination Division letter, the record reflects that many
partners instead chose to ignore the evidence and believe Jay
Hoyt. While believing Jay Hoyt may have ultimately been to their
detriment, the partners’ decision to do so and the failure of
them and the partnerships to discover any of the theft losses
during the years in issue was not due to a false representation
or misleading silence by respondent.
Petitioners’ argument is based on the perspective of the
individual partners, not the partnerships. The party claiming
equitable estoppel must be the party that relied on the
Government’s representations and suffered a detriment because of
that reliance. Norfolk S. Corp. v. Commissioner, 104 T.C. 13, 60
(1995), affd. 140 F.3d 240 (4th Cir. 1998). Here the petitioners
claim that the partnerships relied on respondent’s concealment
and silence to the partnerships’ detriment, then argue that the
partners could not have discovered the loss on their own, but
relied on respondent to take action against Jay Hoyt. To meet
the elements of equitable estoppel, petitioners must establish
that the partnerships suffered to their detriment, not the
partners.
As previously discussed, the partnerships and the partners
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are separate and distinct. By arguing that the partners and not
the partnerships suffered to their detriment, petitioners have
not met a required element of equitable estoppel. Accordingly,
petitioners may not apply equitable estoppel to depart from the
section 165(e) year of discovery requirement.
(ii) Application of the Rod Warren Ink Case
Citing Rod Warren Ink v. Commissioner, 912 F.2d 325 (9th
Cir. 1990), petitioners argue that the sheep partnerships may
deduct theft losses in each year of occurrence rather than in the
year of discovery by the partnerships.
In Rod Warren Ink, the Court of Appeals for the Ninth
Circuit held that the personal holding company (PHC) therein
could deduct theft losses in the years the losses were sustained,
rather than in the year the losses were discovered. Id. at 327-
328.
Due to the unique interaction between section 165(e) and the
PHC tax scheme, a literal application of section 165(e) would
have forced the PHC in Rod Warren Ink to declare income it never
actually received, while preventing the PHC from offsetting this
income through appropriate loss deductions. Id. at 328.
Limiting its holding to the “unique factual pattern” and
“peculiar facts” presented in the case, id., the Court of Appeals
for the Ninth Circuit concluded that a departure from the literal
meaning of section 165(e) was warranted in order to avoid the
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absurd tax result stated above and to effectuate Congress’ intent
to provide relief to taxpayers victimized by theft or
embezzlement. Id. at 327. The Court of Appeals determined that
“Forcing the taxpayer to report the loss only in the year of
discovery for PHC purposes is contrary to the purposes and spirt
of both section 165(e) and the PHC tax scheme,” id. at 327, and
that “a literal application of section 165(e) would unduly
penalize the taxpayer.” Id. at 328. The Court of Appeals went
on to state that “Clearly, Congress did not intend for section
165(e) and the PHC tax scheme to function in such an inequitable
and absurd manner.” Id.
Petitioners’ reliance on Rod Warren Ink is misplaced. The
unique facts in Rod Warren Ink are distinguishable from the facts
in the instant case.
A major distinction between Rod Warren Ink and the instant
case is that the sheep partnerships are not personal holding
companies. See Willoughby v. Commissioner, T.C. Memo. 1994-398.
In addition, petitioners have not presented a persuasive
argument that a departure from the literal meaning of section
165(e) is warranted in order to avoid an “inequitable and absurd”
result. Petitioners assert that an absurd tax consequence will
result if the year of discovery requirement under section 165(e)
is applied, because the partnerships’ inability to discover Jay
Hoyt’s fraud at a sooner date caused the partners to accrue
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additional interest on the disallowed partnership tax benefits
they claimed.
For all the years at issue, the sheep partnerships
distributed substantial tax benefits to the sheep partners under
Jay Hoyt’s and the Hoyt organization’s tax shelter program. Up
until the time the amended petitions were filed in the instant
case following the River City Ranches #4, J.V. v. Commissioner,
T.C. Memo. 1999-209, test case opinion in June 1999, the TMP
maintained that the sheep partnerships were entitled to the tax
benefits reported on the partnership tax returns. From 1993
through 1999, the sheep partners chose to await the outcome of
the Tax Court litigation between respondent and their
partnerships, undoubtedly hoping that this litigation would
validate their entitlement to their claimed partnership tax
benefits. Yet, these partners also knew or should have known
that if respondent’s position in this litigation was upheld, the
Internal Revenue Code requires interest to be imposed on their
resulting income tax underpayments. See Niedringhaus v.
Commissioner, 99 T.C. 202, 222 (1992)(“As a general rule,
taxpayers are charged with knowledge of the law.”).
Petitioners’ argument is in no way analogous to the
“inequitable and absurd” result in Rod Warren Ink, where the PHC
would have been required to declare income it never actually
received if not for the departure from section 165(e). In the
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instant case, if the alleged theft losses were proven and claimed
in the year of discovery, the partnerships would not have to
declare income in a previous year that was never actually
received. Petitioners are not seeking a departure from the year
of discovery requirement to rectify a situation where section
165(e) operates in an “inequitable and absurd” manner that would
unduly penalize the partnerships; petitioners merely are
attempting to reduce the amount of interest the partners, who are
not parties in this case, owe on tax underpayments.
A departure from the literal meaning of section 165(e) is
not warranted in the instant case to implement Congress’ intent.
Congress enacted section 165 to provide relief to taxpayers
victimized by theft or embezzlement. In Rod Warren Ink, the
literal application of section 165(e) would have subverted the
intent of Congress by allowing a theft loss deduction in the year
of discovery, but, at the same time, creating taxable income in
previous years. If petitioners were entitled to a theft loss
deduction, claiming that deduction in the year of discovery17
would provide relief from the thefts in the discovery year and
not unduly penalize the partnerships in any previous years.
By the partnerships strictly following the application of
section 165(e), the sheep partners would not receive the relief
from interest which petitioners seek for them. However, the
17
Petitioners concede that the alleged thefts were
discovered at the earliest in 1997. See supra p. 66.
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partnerships would receive the relief from theft intended by
Congress. The facts in the instant case are clearly
distinguishable from the unique facts in Rod Warren Ink and do
not warrant a departure from the year of discovery requirement
under section 165(e).
(iii) Petitioners’ Year of Discovery Claim
We have decided that equitable estoppel and the holding in
Rod Warren Ink v. Commissioner, supra, have no application in
this case. Thus, petitioners have failed to establish that a
departure from the literal meaning of section 165(e) is warranted
to allow the partnerships to claim theft loss deductions in any
of the years at issue. Accordingly, a theft loss deduction, if
proven, would only be allowed in the year of discovery. See sec.
165(e). Because petitioners admit that the partnerships did not
discover the alleged theft losses until 1997 or 1998, the year of
discovery requirement in section 165(e) precludes a theft loss
deduction in any of the years at issue. See sec. 6226.
c. The Remaining Elements of a Theft Loss
Although failure to prove only one of the elements of a
theft loss prohibits a taxpayer from claiming the deduction,
petitioners have failed to establish two essential elements of a
theft loss deduction. Namely, (1) that the partnerships were
victims of theft and (2) that the year of discovery was a year
before the Court. Since we have held that the partnerships are
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not entitled to a theft loss deduction for any of the years at
issue, the petitioners’ arguments concerning the remaining
elements of a theft loss are moot.
2. Application of Collateral and Judicial Estoppel
To further support their position, petitioners argue that
both collateral and judicial estoppel preclude respondent from
denying that Jay Hoyt’s conviction establishes a theft from the
partnerships and that the amount of the theft is equal to the
total amount contributed by the partners. Petitioners allege
that Jay Hoyt’s conviction establishes a theft from the
partnerships and that the respondent cannot deny what the
Government has already proven.
a. Collateral Estoppel
Petitioners attempt to utilize offensive collateral estoppel
against respondent. Procedurally, in order for a plaintiff to
assert offensive collateral estoppel against a defendant in a
current action, the current defendant must have unsuccessfully
litigated the issue in a previous action. See Kroh v.
Commissioner, 98 T.C. 383, 402 n.8 (1992)(citing Parklane Hosiery
Co. v. Shore, 439 U.S. 322, 326 n.4 (1979)). Here, petitioners
seek to apply the offensive form of collateral estoppel in a
situation where the Government was successful in the previous
action. Petitioners state that this is quite a rare situation,
but that no logical reason exists to preclude the application of
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offensive collateral estoppel when the current defendant was
previously successful. Petitioners freely admit that they found
no case law allowing for such an application. Additionally,
petitioners have not presented a persuasive argument or
sufficient rationale for this Court to adopt a use of offensive
collateral estoppel, which is the antithesis of that determined
by the Supreme Court of the United States in Parklane Hosiery Co.
v. Shore, supra. As the Government was successful in the
previous action against Jay Hoyt, petitioners are precluded from
asserting offensive collateral estoppel against respondent.
Further, petitioners seek to apply the nonmutual form of
offensive collateral estoppel against respondent to establish the
existence of a theft from the partnerships. Petitioners claim
that language in United States v. Mendoza, 464 U.S. 154 (1984),
allows nonmutual offensive collateral estoppel in certain
situations.
Petitioners assert, yet present no authority, that Mendoza
has been limited by some courts “to situations where the policy
concerns of the Court exist.” Petitioners cite, exempli gratia,
NLRB v. Donna Lee Sportswear Co., 836 F.2d 31 (1st Cir. 1987),
for the proposition that “Mendoza has been limited in application
to require mutuality only where important issues of law are at
stake.” However, petitioners fail to cite the many cases from
this Court and the Court of Appeals for the Ninth Circuit,
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wherein an appeal in the instant case would lie, which support a
quite different interpretation of Mendoza.
Contrary to petitioners’ construction of Mendoza, this Court
and the Court of Appeals for the Ninth Circuit have both on
numerous occasions interpreted Mendoza as holding that nonmutual
offensive collateral estoppel may not be invoked against the
Government. See Natl. Med. Enter., Inc. v. Sullivan, 916 F.2d
542, 545 (9th Cir. 1990); Black Constr. Corp. v. INS, 746 F.2d
503, 504 (9th Cir. 1984); Kroh v. Commissioner, supra at 402;
McQuade v. Commissioner, 84 T.C. 137, 144 (1985); Barrett-Crofoot
Invs. v. Commissioner, T.C. Memo. 1994-59. Accordingly, we
follow these cases and hold that petitioners may not invoke
nonmutual offensive collateral estoppel against respondent.
Assuming, arguendo, that in some circumstances nonmutual
offensive collateral estoppel could be applied against
respondent, petitioners failed to show that all the conditions
for application of collateral estoppel have been met. See Peck
v. Commissioner, 90 T.C. 162, 166-167 (1988). Specifically,
petitioners have not presented a persuasive argument that the
issue in the instant cases is “identical in all respects” with an
issue decided in Jay Hoyt’s criminal trial. Id. at 166.
Petitioners claim that respondent is estopped from
relitigating a theft from the partnerships, because Jay Hoyt was
“convicted of stealing all the money contributed to the
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partnerships by all the partners.” Petitioners’ statement is
factually misleading. As previously addressed, Jay Hoyt was
convicted of defrauding the individual investors, not the
partnerships. Furthermore, Jay Hoyt’s theft from the individual
partners was not ipso facto a theft from the partnerships.
The issue presented in Jay Hoyt’s criminal prosecution was
whether he conspired to “defraud thousands of investors.” There
is no dispute that the individual investors were defrauded of
some or all of the money they contributed. However, Jay Hoyt was
not charged with any crime against the sheep partnerships. The
issue in the instant cases is whether a “theft” occurred from the
nine sheep partnerships. The issue of thefts from the sheep
partnerships involved herein is not identical to an issue
litigated and decided in Jay Hoyt’s criminal trial. The two
issues are separate and distinct. Therefore, petitioners have
failed to satisfy the first condition required under Peck to
apply collateral estoppel. Consequently, we need not address the
remaining Peck conditions of collateral estoppel.
For the reasons stated above, petitioners are precluded from
asserting collateral estoppel against respondent with respect to
the issue of a theft from the sheep partnerships for any of the
years at issue.
b. Judicial Estoppel
Petitioners assert that judicial estoppel should apply
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because respondent has taken “clearly inconsistent” positions
from those taken in the criminal prosecution of Jay Hoyt.
Petitioners assert that while the total amount of restitution
ordered in the judgment against Jay Hoyt establishes the amount
of the theft, respondent takes the position that petitioners have
not proven the amount of theft for the years at issue. Further,
petitioners claim that respondent should not be allowed to
contest that Jay Hoyt is “guilty of fraud on a massive scale”.
According to petitioners, the “integrity of the judicial process
would suffer if the IRS were allowed to make the absurd claim
that Hoyt did not defraud petitioners.”
The Court is not persuaded that respondent has taken any
inconsistent positions with respect to the conviction of Jay
Hoyt. As previously stated throughout this opinion, petitioners
have failed to establish that they were defrauded of the amounts
alleged as theft losses. Further, Jay Hoyt’s conviction does not
establish thefts from the partnerships for any of the years at
issue. Respondent does not argue that Jay Hoyt is innocent of
fraud in inducing the investors to contribute cash to the
partnerships; respondent instead takes the position that the
partnerships were not the victims of that fraud. Respondent’s
position is consistent with that of the Government in the
criminal prosecution of Jay Hoyt, that the victims of his fraud
were the individual investors.
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Petitioners have failed to establish the elements necessary
to assert judicial estoppel against respondent. Therefore,
judicial estoppel cannot be utilized to prevent respondent from
disputing petitioners’ claim of the existence and amount of the
thefts from the partnerships.
D. Conclusion
This Court is well aware of Jay Hoyt’s criminal activities
and the harm he has caused to thousands of individuals. Further,
we sympathize with those that were defrauded by Jay Hoyt’s
deceptive practices. However, petitioners did not introduce any
evidence at trial which would support a finding that a theft loss
occurred on the partnership level during each of the years at
issue. Petitioners have not met the elements required to sustain
a section 165 theft loss deduction. Accordingly, we hold that
petitioners have failed to establish that the nine sheep
partnerships are entitled to theft loss deductions in any of the
years at issue.
Issue 2. Expiration of the Period of Limitations
A. The Parties’ Arguments
1. Petitioners’ Arguments
In their amended petitions, petitioners specifically pleaded
that the period of limitations had expired for each of the years
at issue. On brief, petitioners now assert that the period of
limitations has expired only with respect to the following
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partnership taxable years: (1) For RCR #2, 1987; (2) for RCR #3,
1987 and its year ended September 30, 1989; (3) for RCR #4, 1984;
(4) for RCR #5, 1987 and 1988, and its year ended September 30,
1989; (5) for RCR #7, 1987 and 1988, and its year ended September
30, 1989.
On April 23, 2001, respondent filed a motion for partial
summary judgment that the applicable period of limitations with
respect to 1984 for RCR #4 had not expired in docket No. 14038-
96. After petitioners filed an objection to that motion on June
13, 2001, and upon hearing from the parties on the motion during
the trial in the instant case, the Court took respondent’s motion
under advisement.
Petitioners contend that section 6231(c) and section
301.6231(c)-5T, Temporary Proced. & Admin. Regs., 52 Fed. Reg.
6793 (Mar. 5, 1987), taken together, require the IRS, upon
commencement of a criminal tax investigation of any TMP, to
immediately remove that individual as TMP by issuing written
notice that the IRS would treat the removed TMP’s partnership
items as nonpartnership items. According to petitioners, the
first sentence of section 301.6231(c)-5T, Temporary Proced. &
Admin. Regs., supra, expressly provides that, whenever any TMP is
under criminal tax investigation, the continued treatment of that
TMP’s items as partnership items always will interfere with the
effective and efficient enforcement of the revenue laws. Unlike
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Phillips v. Commissioner, 114 T.C. 115 (2000), affd. 272 F.3d
1172 (9th Cir. 2001), petitioners are not claiming that section
301.6231(c)-5T, Temporary Proced. & Admin. Regs., supra, in whole
or part, is invalid or that the IRS abused its discretion in
failing to issue Jay Hoyt (the TMP) the notice that it would
treat his items as nonpartnership items. Petitioners simply
argue that the temporary regulation in question is mandatory and
not discretionary.
Alternatively, petitioners argue that Jay Hoyt, as the TMP,
could not bind the partners of the partnership because he
suffered from numerous disabling conflicts of interest and could
not properly represent the interests of the partners.
Petitioners maintain that Jay Hoyt’s disabling conflicts of
interest bring the instant case squarely within the Court of
Appeals for the Second Circuit’s holding in Transpac Drilling
Venture 1982-12 v. Commissioner, 147 F.3d 221 (2d Cir. 1998),
revg. and remanding T.C. Memo. 1994-26.
Petitioners maintain that these alleged disabling conflicts
of interest on the part of Jay Hoyt involved other conflicts
besides the criminal tax investigations. Petitioners allege that
these other conflicts include Jay Hoyt’s: (1) Perpetrating an
ongoing fraud upon the partners by misrepresenting the numbers
and values of their livestock, while purporting to act as the
partners’ fiduciary; (2) diverting partner contributions to his
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other businesses and properties; (3) participation on both sides
of the livestock sales that the Hoyt organization made to the
partnerships; (4) negotiation of tax issues with the IRS where
the interests of the Hoyt family and the Hoyt organization
conflicted with the interests of the Hoyt cattle and sheep
partnerships and their partners; (5) commingling of partnership
payments and failing to account for his and the Hoyt
organization’s use of those funds; (6) incentive to make
concessions to the IRS, while under criminal investigation, that
were harmful to the partners in order to have the IRS abate
certain tax return preparer penalties that the IRS had assessed
against him; (7) failure to file the partnership returns timely,
thereby incurring late filing penalties; and (8) failure, during
1986, to either (a) inform the partners that he was under
criminal investigation by the IRS, or (b) withdraw from his
fiduciary roles on behalf of the partners.
2. Respondent’s Arguments
Respondent contends that the periods of limitations
applicable to the partnership years in question have not expired,
because the extension agreements that Jay Hoyt (the TMP) and the
IRS executed are valid and binding upon the partners. Respondent
asserts that Phillips v. Commissioner, supra, largely controls
the resolution of the limitations issue raised by petitioners in
the instant case. Specifically, respondent notes that in
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Phillips, this Court and the Court of Appeals for the Ninth
Circuit both rejected the taxpayer-partner’s argument that
section 301.6231(c)-5T, Temporary Proced. & Admin. Regs., supra,
should be construed to require, whenever a criminal tax
investigation of a TMP of a partnership is commenced, that the
IRS automatically remove that individual as TMP.
Respondent further argues that the rationale employed by the
Court of Appeals for the Second Circuit in Transpac Drilling
Venture 1982-12 v. Commissioner, supra, is not applicable here,
because the facts of the instant case, like Phillips, are
distinguishable from those of Transpac. Respondent asserts that
there is no evidence that Jay Hoyt (the TMP), in executing the
extensions, had a disabling conflict of interest as a result of a
criminal tax investigation and was seeking to ingratiate himself
or curry favor with the IRS in exchange for lenient treatment
relating to the criminal investigation.
Respondent maintains that to the extent other partnership
conflicts between Jay Hoyt and the partners existed, those
conflicts were of Jay Hoyt’s making, not due to IRS action or
inaction. Further, respondent asserts that the IRS was not a
party to the dealings between Jay Hoyt and the sheep partners
which created these alleged conflicts of interest, nor was the
IRS involved in concealing Jay Hoyt’s fraud upon the partners or
responsible for his failures.
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B. Discussion of Applicable Law
The TMP is the central figure of partnership proceedings and
his status is of critical importance to the proper functioning of
the partnership audit and litigation procedures of secs. 6221-
6233. Phillips v. Commissioner, 114 T.C. at 120-121; Computer
Programs Lambda, Ltd. v. Commissioner, 89 T.C. 198, 205 (1987).
Generally, there is a 3-year period of limitations on the
assessment of a tax attributable to any partnership item. Sec.
6229(a). And, generally, the issuance of an FPAA will suspend
the period of limitations, e.g., sec. 6229(d). The TMP (or any
other person authorized by the partnership in writing to enter
into such an agreement), however, may extend the period of
limitations on assessment with respect to all partners in a
partnership by entering into an extension agreement with the IRS
before the expiration of the limitation period. Sec.
6229(b)(1)(B).18
A TMP is generally designated at the time the partnership
return is filed. See sec. 301.6231(a)(7)-1T(c), Temporary
Proced. & Admin. Regs, 52 Fed. Reg. 6791 (Mar. 5, 1987).19 The
18
The period of limitations for a specific partner may
also be extended by an agreement between the IRS and that
partner. See sec. 6229(b)(1)(A).
19
Temporary regulations under sec. 6231 concerning the
designation, selection and termination of a TMP were issued in
1984 and 1987, and generally applied to all partnership taxable
years beginning after Sept. 3, 1982. Virtually identical
provisions are made by the final regulation sec. 301.6231(a)(7)-
(continued...)
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designation of a TMP remains effective until the termination of
that designation pursuant to section 301.6231(a)(7)-1(1)T,
Temporary Proced. & Admin. Regs., 52 Fed. Reg. 6792 (Mar. 5,
1987), which provides in pertinent part:
(l) Termination of designation. A designation of a
tax matters partner for a taxable year under this
section shall remain in effect until–
* * * * * * *
(4) The partnership items of the tax matters partner
become nonpartnership items under section 6231(c)
(relating to special enforcement areas), * * *
* * * * * * *
The termination of the designation of a partner as the
tax matters partner under this paragraph (l) does not
affect the validity of any action taken by that partner
as tax matters partner before the designation is
terminated. For example, if that tax matters partner
had previously consented to an extension of the period
for assessments under section 6229(b)(1)(B), that
extension remains valid even after termination of the
designation.
In turn, section 6231(c), relating to special enforcement areas,
applies to criminal investigations that the Secretary determines
by regulation to present special enforcement considerations.
Section 301.6231(c)-5T, Temporary Proced. & Admin. Regs., 52
Fed. Reg. 6793 (Mar. 5, 1987),20 was promulgated by the Secretary
19
(...continued)
1, Proced. & Admin. Regs., which is effective for all
designations, selections, and terminations of a TMP occurring on
or after Dec. 23, 1996. See sec. 301.6231(a)(7)-1(s), Proced. &
Admin. Regs.
20
This temporary regulation concerning criminal tax
(continued...)
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pursuant to section 6231(c)(2) and (3) and provides for the
treatment of a partnership item of a partner who is the subject
of a criminal tax investigation as follows:
The treatment of items as partnership items with
respect to a partner under criminal investigation for
violation of internal revenue laws relating to income
tax will interfere with the effective and efficient
enforcement of the internal revenue laws. Accordingly,
partnership items of such a partner arising in any
partnership taxable year ending on or before the last
day of the latest taxable year of the partner to which
the criminal investigation relates shall be treated as
nonpartnership items as of the date on which the
partner is notified that he or she is the subject of a
criminal investigation and receives written
notification from the Service that his or her
partnership items shall be treated as nonpartnership
items. The partnership items of a partner who is
notified that he or she is the subject of a criminal
investigation shall not be treated as nonpartnership
items under this section unless and until such partner
receives written notification from the Service of such
treatment.
In Phillips v. Commissioner, supra, this Court dealt with
and rejected the arguments of a taxpayer-partner in several Hoyt
cattle partnerships that the periods of limitations for the
partnership taxable years in question had expired. The argument
was based on the theory that agreements that Jay Hoyt (the TMP of
each partnership) and the IRS executed extending the limitations
periods did not bind the partners of the partnership. In
Phillips v. Commissioner, supra, the taxpayer specifically argued
20
(...continued)
investigations applies to partnership taxable years beginning
after Sept. 3, 1982. See 52 Fed. Reg. 6779 (Mar. 5, 1987).
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that: (1) The second and third sentences of section 301.6231(c)-
5T, Temporary Proced. & Admin. Regs., supra, were invalid, so
that initiation of a criminal tax investigation of Jay Hoyt (the
TMP of the partnership) automatically converted his partnership
items into nonpartnership items as a matter of law, thereby
effectuating Jay Hoyt’s removal as TMP; (2) the criminal tax
investigation of Jay Hoyt (the TMP) created a conflict of
interest between Jay Hoyt’s duties as a fiduciary of the
partnership and his self-interest as the subject of a criminal
tax investigation, and such conflict necessitated his removal as
TMP based on the rationale of the Court of Appeals for the Second
Circuit in Transpac Drilling Venture 1982-12 v. Commissioner, 147
F.3d 221 (2d Cir. 1998); and (3) the Commissioner abused his
discretion by not issuing a written notice informing Jay Hoyt
(the TMP) that his partnership items would be treated as
nonpartnership items.
This Court, however, held that the extensions in Phillips v.
Commissioner, supra, were valid and that the periods of
limitations for those partnership taxable years thus had not
expired. In so holding, this Court concluded that: (1) Section
301.6231(c)-5T, Temporary Proced. & Admin. Regs., supra, was a
valid regulation; (2) the facts of Phillips were distinguishable
from those of Transpac, since the criminal tax investigation of
Jay Hoyt (a) did not create a disabling conflict of interest on
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the part of Jay Hoyt (the TMP) toward the partners of the
partnership, and (b) therefore, did not terminate his designation
as TMP; and (3) the taxpayer failed to establish that respondent
abused his discretion by not notifying Jay Hoyt (the TMP) that
his partnership items would be treated as nonpartnership items.
In Phillips v. Commissioner, 272 F.3d 1172 (9th Cir. 2001), affg.
114 T.C. 115 (2000), the Court of Appeals for the Ninth Circuit
agreed with the Tax Court’s reasoning and result in all pertinent
respects.
C. Determination as to Whether the Applicable Periods of
Limitations on Assessment Have Expired
In the instant case, the Court’s findings, supra p. 31, list
the partnership taxable years in question, the date upon which
the partnership return for each such year was filed, the
respective dates upon which Jay Hoyt (the TMP of that
partnership) and the IRS executed extension forms extending the
limitation period for that year, the date to which Jay Hoyt and
the IRS (in each extension) agreed to extend the limitation
period, and the date upon which respondent issued the partnership
the FPAA for that year.
As to each partnership taxable year in question, the parties
essentially agree that the 3-year period of limitations generally
provided under section 6229(a) would otherwise have expired prior
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to the date upon which respondent issued each partnership the
FPAA for that year, but for Jay Hoyt (the TMP) and the IRS’s
having executed timely an extension or a series of extensions
that extended the period of limitations beyond the date upon
which the FPAA was issued.
The parties disagree solely over whether the extensions that
Jay Hoyt executed for the taxable years set forth supra p. 83,
are valid and bind the partners of the partnership. Except for
the extension concerning the 1984 taxable year of RCR #4, these
extensions concern post-1986 partnership taxable years and were
executed by Jay Hoyt and the IRS on various dates from February
1991 through March 1993. Jay Hoyt and the IRS executed the
extension concerning RCR #4’s 1984 taxable year on August 1,
1987.
The Court rejects petitioners’ contention that section
301.6231(c)-5T, Temporary Proced. & Admin. Regs., supra, requires
the IRS automatically to end the partnership treatment of the
items of any TMP whenever a criminal tax investigation of that
TMP is commenced. The Court of Appeals for the Ninth Circuit
affirmed this Court’s determination in Phillips v. Commissioner,
114 T.C. 115 (2000), that such an interpretation of the temporary
regulation is improper, because it would require reading the
first sentence of the temporary regulation in isolation, divorced
from the other two sentences of the regulation as a whole.
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Phillips v. Commissioner, 272 F.3d at 1175-1176. The Court of
Appeals and this Court both concluded that the regulation,
properly read as a whole, vests discretion in the IRS to
terminate TMP status of an individual under criminal tax
investigation. See Phillips v. Commissioner, 272 F.3d at 1176
and 114 T.C. at 129, 132-133.
Petitioners next argue that Jay Hoyt, in executing the
extensions in question, was operating under purported disabling
conflicts of interest, requiring this Court, pursuant to the
rationale of the Court of Appeals for the Second Circuit in
Transpac Drilling Venture 1982-12 v. Commissioner, 147 F.3d 221
(2d Cir. 1998), to invalidate these extensions and hold these
extensions not binding upon the partners. Petitioners interpret
Transpac as broadly requiring invalidation of a TMP’s extension
of the period of limitations if there is the mere potential for a
conflict of interest on the part of the TMP in executing the
extension. Additionally, petitioners suggest that a TMP also
engaged in serious breaches of his other general partnership
duties cannot execute an extension that binds the partners of the
partnership, even where that TMP’s execution of the extension
itself with the IRS is not established to be in obvious breach or
violation of his fiduciary duty as TMP to the partners.
In Transpac, Phillips v. Commissioner, 272 F.3d 1172 (9th
Cir. 2001), and Madison Recycling Associates v. Commissioner, 295
- 94 -
F.3d 280 (2d Cir. 2002), affg. T.C. Memo. 2001-85, affg. T.C.
Memo. 1992-605, the alleged disabling conflict of interest that
purportedly existed during the execution of the extensions was
that each TMP was the subject of an ongoing criminal tax
investigation. In Transpac, the Court of Appeals for the Second
Circuit found a disabling conflict existed on the part of the
TMPs in executing the extensions and invalidated those
extensions. In contrast, in Phillips and Madison, both appellate
courts and this Court determined that the respective TMPs were
operating under no disabling conflict in executing the
extensions, and held the extensions valid and binding upon the
partners of the partnership.
In Phillips, neither the Court of Appeals for the Ninth
Circuit nor this Court viewed and interpreted the Transpac
holding as broadly as petitioners argue for in the instant case.
Further, both courts readily distinguished the facts in Phillips
from those in Transpac. See Phillips v. Commissioner, 272 F.3d
at 1175 and 114 T.C. at 130-132. As the Court of Appeals in
Phillips explained:
Phillips puts particular reliance on Transpac Drilling
Venture 1982-12 v. Commissioner, 147 F.3d 221 (2d Cir.
1998).
Transpac sets out with admirable clarity that a
TMP, although created by statute, owes a fiduciary duty
to his partners, and that, as the TMP’s acts bind his
partners, they “secure their due process protection” by
his faithful discharge of his fiduciary obligations.
Id. at 225. But in Transpac the court could observe,
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“The facts of the matter speak for themselves.” Id. at
227. The IRS had sought waivers of the statute of
limitations from the limited partners, who refused to
execute them. The IRS then went to the three TMPs who
knew themselves to be under criminal investigation in
connection with the partnership and were cooperating
with the government in its case against another
partner. As the court observed, they had “a powerful
incentive to ingratiate themselves to the government.”
Id. They gave the waivers the IRS wanted. The court
properly found the waivers invalid. Trust law,
generally, invalidates the transaction of a trustee who
is breaching his trust in a transaction in which the
other party is aware of the breach. See Restatement of
Trusts, secs. 288-297. Transpac is a salutary
application of this rule to the particular case of a
TMP who should have been seen by the IRS as laboring
under an incapacitating conflict of interest.
Two circumstances differentiate this case. The IRS
made no attempt to get waivers from limited partners.
The partnerships for which Hoyt was being investigated
have not been shown to be the partnerships involved in
this case. It is not intuitively obvious that Hoyt did
what is a routine accommodation--signing a waiver in
order to avoid immediate assessment by the IRS--in
order to ingratiate himself in the investigation of his
partnerships. Phillips has speculated that Hoyt so
acted; he has not proved it.
Similarly, this Court in Phillips v. Commissioner, 114 T.C. at
131-132, in distinguishing the facts in Phillips from those in
Transpac, noted that there was no evidence that: (1) The IRS
approached the limited partners to execute extensions or that
they refused to sign such extensions; (2) the promoter-TMP Jay
Hoyt was, before or during the relevant period, indicted or
convicted of a tax felony or cooperating with the Government; or
(3) the IRS misled the partners about the existence of criminal
tax investigations or ever instructed Jay Hoyt to say nothing
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about such criminal tax investigations. Further, the criminal
tax investigations had ended prior to Jay Hoyt’s execution of all
except one or two of the extensions.
This Court in Phillips further noted that Jay Hoyt, in
executing the extensions, did not try to curry favor or
ingratiate himself with the IRS in relation to the criminal tax
investigations. He continued to promote the partnerships in his
tax shelter program after the initiation of the criminal tax
investigations, continued to defend his legal position throughout
the criminal tax investigations, and continued to maintain that
all partnership items were legitimate, a position consistent with
that of his partners.
In Madison Recycling Associates v. Commissioner, 295 F.3d at
288-289, the Court of Appeals for the Second Circuit
distinguished its earlier Transpac holding as based on the
existence of an obvious and actual serious conflict of interest
on the part of each of the Transpac TMPs in executing the
extensions. It noted that, unlike Transpac, there was no
suggestion that the Madison TMP was a prospective governmental
witness, nor was there any evidence the TMP had given the
extensions in exchange for a grant of immunity or other
inducements relevant to the criminal tax investigation, as
neither the Madison TMP nor his representative apparently was
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even aware of the existence of (or the prospect of) a criminal
investigation.
In the instant case, Jay Hoyt executed virtually all of the
extensions in question when no criminal tax investigation of him
was being conducted. He executed extensions concerning the post-
1986 partnership years on various dates from February 1991
through March 1993. Earlier, in the summer of 1989, CID
commenced an investigation of Jay Hoyt for allegedly selling
nonexistent cattle to the Hoyt cattle partnerships, but this
investigation was completed by October 1, 1990. During this
investigation of Jay Hoyt, CID in October 1989 was asked to
review certain information and determine whether IRS special
agents should join in an ongoing grand jury investigation of Jay
Hoyt by the U.S. Attorney’s Office in Sacramento. This grand
jury investigation was closed on October 2, 1990. No prosecution
resulted from either the CID investigation or the grand jury
investigation.
Jay Hoyt executed the first of the extensions in question
concerning post-1986 partnership taxable years in mid-February
1991, several months after the closing of the above CID and grand
jury investigations in early October 1990. He executed the last
of these extensions concerning post-1986 partnership years in
early March 1993, over 5 months before CID’s next criminal tax
investigation of him commenced on or about August 31, 1993.
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Accordingly, the argument that an ongoing criminal tax
investigation created a disabling conflict for Jay Hoyt in
executing these extensions is without merit, since no criminal
investigations of Jay Hoyt were being conducted when these
extensions were executed.
The extension concerning RCR #4’s 1984 taxable year was
executed by Jay Hoyt and the IRS on August 1, 1987, shortly
before the U.S. Attorney’s Office in Sacramento declined to
prosecute him for his alleged backdating of documents. As this
Court observed in Phillips v. Commissioner, 114 T.C. at 152,
however, the Court of Appeals for the Second Circuit in Transpac
did not assume that the mere existence of an investigation would
subvert a TMP’s judgment and bend him to the Government’s will in
dereliction of his fiduciary duties to his partners.
As in Phillips, there is no evidence in the instant case
that Jay Hoyt executed the extensions under pressure in exchange
for leniency in relation to any criminal tax investigation of
him. In addition, Jay Hoyt continued to defend the legitimacy of
the sheep partnerships as he did with the cattle partnerships in
the Phillips case. With only minor exceptions, Jay Hoyt executed
the extensions in the instant case during the same time period he
executed the extensions in Phillips.
In the instant case, the Court concludes that petitioners
have failed to establish that Jay Hoyt, in executing the
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extension concerning the 1984 taxable year of RCR #4, was
operating under a disabling conflict of interest due to this
ongoing criminal investigation.
Although petitioners have alleged numerous breaches and
violations by Jay Hoyt of other general partnership duties, his
violations of those duties, if proven, have only a remote and
highly attenuated connection, at best, to his execution as TMP of
the extensions in dispute. The Court is not convinced that such
violations by Jay Hoyt of his other partnership duties in
managing and operating a partnership, constitute disabling
conflicts of interest in executing the extensions as TMP. See
Phillips v. Commissioner, 272 F.3d at 1175 (distinguishing
Transpac, by noting, among other things, that a TMP’s execution
of an extension often is a routine accommodation granted the IRS
and avoids respondent’s issuance of an FPAA immediately).
Petitioners further suggest that Jay Hoyt granted the
extensions in exchange for the IRS’s abatement of penalties
against him totaling $119,700, covering years prior to 1989. Of
the $119,700 of abated penalties, $90,000 were penalties under
section 6701 assessed against Jay Hoyt sometime in mid-1989. The
IRS abated the $90,000 of section 6701 penalties in early 1991,
following Jay Hoyt’s filing a refund claim in 1990. Petitioners
state that the IRS “inexplicably” abated all $119,700 in
penalties that it previously assessed against Jay Hoyt.
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Petitioners suggest that the abatement was a quid pro quo for Jay
Hoyt’s executing the extensions. The Court rejects this as an
unwarranted supposition on the part of petitioners.
In light of the issuance of the 1989 test case opinion in
Bales v. Commissioner, T.C. Memo. 1989-568, we believe that the
IRS, in all likelihood, chose to abate most of these penalties
because of doubts about whether its imposition of the penalties
ultimately would be sustained if Jay Hoyt were to bring a refund
suit in U.S. District Court challenging the propriety of the
penalties. As noted previously, this Court in Bales did not
sustain respondent’s disallowance of many of the tax benefits a
number of partners in Hoyt cattle partnerships claimed for 1977,
1978, and 1979. This Court decided, among other things, that the
Bales partnerships had acquired the benefits and burdens of
ownership with respect to specific breeding cattle, that the
purchase prices for the partnership cattle did not exceed the
fair market value of those cattle, and that the promissory notes
these partnerships issued were valid recourse indebtedness.
Also, in order to hold Jay Hoyt liable for certain return
preparer penalties, the Government in such refund suit would have
the burden of proof in establishing Jay Hoyt’s liability for the
penalty and would have to show, among other things, that Jay Hoyt
had known that the deductions and credits claimed were incorrect
and would result in an understatement of another’s tax. See
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secs. 6694(b), 6703(a), 6701(a)(3), 7427; Bailey v. United
States, 927 F. Supp. 1274, 1278 (D.Ariz. 1996), affd. 117 F.3d
1424 (9th Cir. 1997).
D. Conclusion
Based on the foregoing, petitioners have failed to establish
that any of the extensions Jay Hoyt (the TMP) and the IRS
executed are invalid. Accordingly, the Court holds that the
period of limitations with respect to each partnership taxable
year in question did not expire prior to respondent’s issuance of
the FPAA. See Rules 39, 142(a); Madison Recycling Associates. v.
Commissioner, 295 F.3d 280, 286 (2d Cir. 2002); Phillips v.
Commissioner, 272 F.3d 1172 (9th Cir. 2001); Amesbury Apartments,
Ltd. v. Commissioner, 95 T.C. 227, 241-243 (1990). In light of
this holding, respondent’s motion for partial summary judgment is
moot. See supra p. 84.
Issue 3. Whether Some Partnerships’ Purported Purchases of
Breeding Sheep Constitute Either Valuation Overstatements for
Purposes of Section 6621(c)(3)(A)(i) or Sham and Fraudulent
Transactions for Purposes of Section 6621(c)(3)(A)(v)
A. The Parties’ Arguments
1. Petitioners’ Arguments
In their amended petitions, petitioners ask this Court to
determine that purported purchases of breeding sheep reported by
some sheep partnerships are not tax-motivated transactions for
purposes of section 6621(c). Specifically, petitioners argue
that these transactions of the partnerships constitute neither
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valuation overstatements under section 6621(c)(3)(A)(i), nor sham
or fraudulent transactions under section 6621(c)(3)(A)(v).
On July 16, 2001, during the trial in the instant case,
respondent filed a motion to dismiss this section 6621(c) issue
for lack of jurisdiction, together with a memorandum of points
and authorities in docket No. 9550-94. The Court took the matter
under advisement. On August 3, 2001, respondent filed identical
motions, together with memoranda of points and authorities in
docket Nos. 787-91, 4876-94, 9552-94, 9554-94, 13597-94, 13599-
94, and 14038-96. The Court took these motions under advisement.
Petitioners timely filed their objections to respondent’s motions
to dismiss. The parties then filed their respective posttrial
briefs in the instant case, in which they have addressed the
section 6621(c) issue and respondent’s motions to dismiss.
Petitioners contend that this Court does have jurisdiction
in these partnership level proceedings to determine whether or
not the transactions involving the sheep partnerships are
attributable to tax-motivated transactions for purposes of
section 6621(c). Petitioners assert that these transactions are
neither valuation overstatements as defined in section
6621(c)(3)(A)(i), nor are they sham or fraudulent transactions as
defined in section 6621(c)(3)(A)(v). Among other things,
petitioners maintain that if these transactions were shams, they
were part of a fraud perpetrated by Jay Hoyt upon the partners
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and that the partners did not knowingly participate in this
fraud. Petitioners argue that it would be an absurd result to
penalize and impose section 6621(c) interest against these
victims of Jay Hoyt’s fraud, who (petitioners allege) invested
without the principal purpose of tax avoidance and genuinely
believed that their partnership was engaged in a legitimate
business activity.
Petitioners further argue that since they have conceded all
of the depreciation deductions and investment credits that the
Hoyt sheep partnerships claimed, the Court should find that there
are no valuation overstatements because any statements of value
or adjusted basis on the partnership returns concerning the
partnership’s purported breeding sheep are now irrelevant. In
making this argument, petitioners are relying upon and seeking to
come within the decisions by the U.S. Courts of Appeals for the
Fifth and Ninth Circuits and this Court in Todd v. Commissioner,
862 F.2d 540 (5th Cir. 1988), affg. 89 T.C. 912 (1987), Gainer v.
Commissioner, 893 F.2d 225 (9th Cir. 1990), affg. T.C. Memo.
1988-416, and McCrary v. Commissioner, 92 T.C. 827 (1989),
respectively.
Todd, Gainer, and McCrary all held that the section 6659
addition to tax for valuation overstatement was inapplicable
where the taxpayer conceded that no deductions or credits were
allowable, due to property not having been placed in service.
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Since none of the taxpayers in the three cited cases were
entitled to any deductions and credits regardless of any
valuation overstatement, there were no underpayments attributable
to a valuation overstatement. McCrary further held that section
6621(c) interest was inapplicable where deductions are disallowed
on separate and independent grounds that do not fall among the
categories of tax-motivated transactions listed in section
6621(c)(3)(A).
Noting the U.S. Court of Appeals for the Fifth Circuit’s
decision in Heasley v. Commissioner, 902 F.2d 380 (5th Cir.
1990), revg. T.C. Memo. 1988-408, petitioners additionally argue
that there can be no valuation overstatement where the
transaction was a sham and the asset alleged to have been
acquired does not exist.
2. Respondent’s Arguments
Respondent contends that this Court, as set forth in
respondent’s motions to dismiss, lacks jurisdiction in these
partnership proceedings to determine whether section 6621(c)
applies. However, respondent now further maintains that this
Court does have jurisdiction to and should determine that (1)
there were asset overvaluations and basis overstatements, and (2)
the partnership transactions were shams.
Respondent disputes petitioner’s argument that the
partnership transactions do not involve valuation overstatements
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for purposes of section 6621(c)(3)(A)(i). According to
respondent, the Todd, Gainer, and McCrary decisions (which
petitioners rely upon) are distinguishable. Respondent points
out that the parties in the instant case, besides agreeing that
the sheep partnerships are not entitled to almost all the tax
benefits they originally claimed for the years at issue, have
stipulated and agreed that (1) the partnerships failed to acquire
the benefits and burdens of ownership of any sheep, (2) many of
the purported breeding sheep a partnership allegedly purchased
were fictitious, and (3) each partnership’s stated purchase price
for its “sheep” greatly exceeded the value of those “sheep”.
Citing decisions of several appellate courts and this Court,
respondent asserts that where a partnership fails to acquire
ownership of any sheep for tax purposes, the partnership’s
correct adjusted basis for the sheep is zero, and a valuation
overstatement under section 6621(c)(3)(A)(i) exists. See Rose v.
Commissioner, 868 F.2d 851, 854 (6th Cir. 1989), affg. 88 T.C.
386 (1987); Zirker v. Commissioner, 87 T.C. 970, 978-979, 981
(1986); see also Zfass v. Commissioner, 118 F.3d 184, 190-191
(4th Cir. 1997) (and cases cited thereat), affg. T.C. Memo. 1996-
167; cf. Singer v. Commissioner, T.C. Memo. 1997-325; Greene v.
Commissioner, T.C. Memo. 1997-296.
Respondent additionally disagrees with petitioners’ argument
that the partnership transactions do not involve sham or
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fraudulent transactions under section 6621(c)(3)(A)(v).
Respondent notes that transactions constituting either shams in
fact or shams in substance are shams for purposes of section
6621(c)(3)(A)(v). Cherin v. Commissioner, 89 T.C. 986, 1000-1001
(1987); see Thomas v. United States, 166 F.3d 825, 834 (6th Cir.
1999) (holding that once a transaction is found to be a sham,
section 6621(c) interest is imposed regardless of a taxpayer’s
investment motive); Anderson v. Commissioner, 62 F.3d 1266, 1274
(10th Cir. 1995) (same), affg. T.C. Memo. 1993-607.
B. Section 6621(c)
Section 6621(c)21 (formerly section 6621(d)) provides for an
increased rate of interest with respect to “any substantial
underpayment” of tax in any taxable year “attributable to 1 or
more tax motivated transactions” if the amount of the
underpayment for such year so attributable exceeds $1,000.
Section 6621(c)(3)(A) generally lists the types of transactions
which are considered “tax motivated transactions”. A tax
motivated transaction includes any valuation overstatement within
the meaning of section 6659(c), and such a valuation
overstatement exists, among other situations, if the adjusted
basis of property claimed on any return exceeds 150 percent of
21
The Omnibus Budget Reconciliation Act of 1989 (OBRA
1989), sec. 7721(b), 103 Stat. 2106, 2399, repealed sec. 6621(c).
This repeal was effective for returns the due date for which
(determined without extensions) is after Dec. 31, 1989. See OBRA
1989 sec. 7721(c), 103 Stat. 2400, Pub. L. 101-239.
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the correct amount of basis. Secs. 6621(c)(3)(A)(i), 6659(c). A
tax motivated transaction further includes “any sham or
fraudulent transaction.” Sec. 6621(c)(3)(A)(v).
The section 6621(c) increased rate of interest does not
apply to deductions disallowed on separate and independent
grounds which do not fall within the specified categories of tax-
motivated transactions. McCrary v. Commissioner, 92 T.C. 827,
858-859 (1989). However, an increased rate of interest will
apply where a valuation overstatement or other category of tax-
motivated transaction is an integral part of or is inseparable
from the ground found for disallowance of an item. Irom v.
Commissioner, 866 F.2d 545, 547-548 (2d Cir. 1989), vacating in
part T.C. Memo. 1988-211; McCrary v. Commissioner, supra at 859-
860.
C. The Tax Court’s Jurisdiction
Congress enacted the partnership audit and litigation
procedures to provide a method to uniformly adjust items of
partnership income, loss, deduction, or credit that would affect
each partner. The statute makes a distinction between
partnership items and nonpartnership items. The tax treatment of
partnership items may only be determined in a partnership level
proceeding, while nonpartnership items may only be determined at
the individual partner level. See sec. 6221; Affiliated Equip.
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Leasing II v. Commissioner, 97 T.C. 575, 576 (1991); Maxwell v.
Commissioner, 87 T.C. 783, 787-788 (1986).
Section 622622 authorizes the judicial review of FPAAs and
provides in pertinent part:
SEC. 6226(f) SCOPE OF JUDICIAL REVIEW.-A court with
which a petition is filed in accordance with this
section shall have jurisdiction to determine all
partnership items of the partnership for the
partnership taxable year to which the notice of final
partnership administrative adjustment relates and the
proper allocation of such items among the partners.
[Emphasis added.]
Section 6231(a) defines the term “partnership item” as
follows:
(3) PARTNERSHIP ITEM.-The term “partnership item”
means, with respect to a partnership, any item required
to be taken into account for the partnership’s taxable
year under any provision of subtitle A to the extent
regulations prescribed by the Secretary provide that,
for purposes of this subtitle, such item is more
appropriately determined at the partnership level than
at the partner level. [Emphasis added.]
As defined, partnership items can only be those items
arising under subtitle A of the Internal Revenue Code. Section
22
The Taxpayer Relief Act of 1997 (Relief Act 1997), 111
Stat. 788, 1026, Pub. L. 105-34, sec. 1238(b)(1), amended sec.
6226(f) and expanded this Court’s jurisdiction in partnership
level proceedings to include the applicability of “any penalty,
addition to tax, or additional amount” related to the adjustment
of a partnership item. This amendment to sec. 6226(f) is
effective only for partnership taxable years ending after Aug. 5,
1997, and does not apply to the years at issue in the instant
case. Relief Act 1997 sec. 1238(c), 111 Stat. 1027. Moreover,
as noted supra note 21, sec. 6621(c) previously was repealed by
the OBRA 1989, effective for taxable years the due date of the
returns for which (determined without extensions) is after Dec.
31, 1989.
- 109 -
6621(c), however, is within subtitle F, not subtitle A.
Affiliated Equip. Leasing II v. Commissioner, supra 577-578. In
contrast to a partnership item, an “affected item” is “any item
to the extent such item is affected by a partnership item.” Sec.
6231(a)(5). Thus, section 6621(c) interest is an “affected
item”, because a taxpayer-partner’s liability for such interest
may require findings of fact peculiar to a particular partner.
Affiliated Equip. Leasing II v. Commissioner, supra at 578;
N.C.F. Energy Partners v. Commissioner, 89 T.C. 741, 744-746
(1987) (noting that section 6621(c)’s applicability also turns on
the amount of a taxpayer’s underpayment attributable to a tax-
motivated transaction). Affected items of this type, because
they depend on partnership level determinations, are by
definition not partnership items and cannot be determined in a
partnership level proceeding. Affiliated Equip. Leasing II v.
Commissioner, supra at 578; N.C.F. Energy Partners v.
Commissioner, supra at 743-745. Accordingly, the Tax Court lacks
jurisdiction in this partnership level proceeding to decide the
applicability of section 6621(c) interest.
To reflect our holdings with respect to Issues 1 through 3
and the concessions of the parties,
Appropriate orders and
decisions will be entered under
Rule 155.
- 110 -
APPENDIX
Docket No. Partnership and Tax Matters Partner
787-91 River City Ranches #1 Ltd., Leon Shepard,
Tax Matters Partner
River City Ranches #2 Ltd., Leon Shepard,
Tax Matters Partner
River City Ranches #3 Ltd., Leon Shepard,
Tax Matters Partner
River City Ranches #4 Ltd., Leon Shepard,
Tax Matters Partner
River City Ranches #5 Ltd., Leon Shepard,
Tax Matters Partner
River City Ranches #6 Ltd., Leon Shepard,
Tax Matters Partner
4876-94 River City Ranches #2, J.V., David Britton,
Tax Matters Partner
9550-94 River City Ranches #3, J.V., Michael Dale,
Tax Matters Partner
9552-94 River City Ranches #5, J.V., Stephen Hughes,
Tax Matters Partner
9554-94 River City Ranches 1985-2, J.V.,*
Jeffry Bergamyer, Tax Matters Partner
13595-94 River City Ranches #3, J.V., Michael Dale,
Tax Matters Partner
13597-94 River City Ranches #5, J.V., Stephen Hughes,
Tax Matters Partner
13599-94 River City Ranches 1985-2, J.V.,*
Jeffry Bergamyer, Tax Matters Partner
382-95 Ovine Genetic Technology Syndicate
1987-1, J.V., Linda Routzahn,
Tax Matters Partner
383-95 River City Ranches 1985-2, J.V.,*
Jeffry Bergamyer, Tax Matters Partner
- 111 -
385-95 River City Ranches #3, J.V., Michael Dale,
Tax Matters Partner
386-95 River City Ranches #5, J.V., Stephen Hughes,
Tax Matters Partner
14718-95 River City Ranches #1, J.V., Stephen Hughes,
Tax Matters Partner
14719-95 River City Ranches #2, J.V., David Britton,
Tax Matters Partner
14720-95 River City Ranches #3, J.V., Michael Dale,
Tax Matters Partner
14722-95 River City Ranches #5, J.V., Stephen Hughes,
Tax Matters Partner
14724-95 River City Ranches #7, J.V.,*
Jeffry Bergamyer, Tax Matters Partner
21461-95 Ovine Genetic Technology Syndicate
1987-1, J.V., Linda Routzahn,
Tax Matters Partner
5196-96 Ovine Genetic Technology Syndicate
1987-1, J.V., Linda Routzahn,
Tax Matters Partner
5197-96 Ovine Genetic Technology 1990, J.V.,
Leon Shepard, Tax Matters Partner
5198-96 River City Ranches #1, J.V., Stephen Hughes,
Tax Matters Partner
5238-96 River City Ranches #4, J.V., Leon Shepard,
Tax Matters Partner
5239-96 River City Ranches #7, J.V.,*
Jeffry Bergamyer, Tax Matters Partner
5240-96 River City Ranches #5, J.V., Stephen Hughes,
Tax Matters Partner
5241-96 River City Ranches #6, J.V.,
Joseph Sotro, Sr., Tax Matters Partner
- 112 -
9779-96 River City Ranches #4, J.V., Leon Shepard,
Tax Matters Partner
9780-96 River City Ranches #5, J.V., Stephen Hughes,
Tax Matters Partner
9781-96 River City Ranches #6, J.V.,
Joseph Sotro, Sr., Tax Matters Partner
14038-96 River City Ranches #4, J.V., Leon Shepard,
Tax Matters Partner
21774-96 Ovine Genetic Technology 1990, J.V.,
Leon Shepard, Tax Matters Partner
3304-97 River City Ranches #3, J.V., Michael Dale,
Tax Matters Partner
3305-97 River City Ranches #2, J.V., David Britton,
Tax Matters Partner
3306-97 River City Ranches #1, J.V., Stephen Hughes,
Tax Matters Partner
3311-97 Ovine Genetic Technology Syndicate
1987-1, J.V., Linda Routzahn,
Tax Matters Partner
3749-97 River City Ranches #7, J.V.,*
Jeffry Bergamyer, Tax Matters Partner
15747-98 Ovine Genetic Technology Syndicate
1987-1, J.V., Linda Routzahn,
Tax Matters Partner
15748-98 River City Ranches #1, J.V., Stephen Hughes,
Tax Matters Partner
15749-98 River City Ranches #3, J.V., Michael Dale,
Tax Matters Partner
15750-98 River City Ranches #2, J.V., David Britton,
Tax Matters Partner
15751-98 River City Ranches #4, J.V., Leon Shepard,
Tax Matters Partner
- 113 -
15752-98 River City Ranches #5, J.V., Stephen Hughes,
Tax Matters Partner
15753-98 River City Ranches #6, J.V.,
Joseph Sotro, Sr., Tax Matters Partner
15754-98 River City Ranches #7, J.V.,*
Jeffry Bergamyer, Tax Matters Partner
19106-98 Ovine Genetic Technology 1990, J.V.,
Leon Shepard, Tax Matters Partner
13250-99 Ovine Genetic Technology Syndicate
1987-1, J.V., Linda Routzahn,
Tax Matters Partner
13251-99 Ovine Genetic Technology 1990, J.V.,
Leon Shepard. Tax Matters Partner
13256-99 River City Ranches #1, J.V., Stephen Hughes,
Tax Matters Partner
13257-99 River City Ranches #2, J.V., David Britton,
Tax Matters Partner
13258-99 River City Ranches #3, J.V., Michael Dale,
Tax Matters Partner
13259-99 River City Ranches #4, J.V., Leon Shepard,
Tax Matters Partner
13260-99 River City Ranches #5, J.V., Stephen Hughes,
Tax Matters Partner
13261-99 River City Ranches #6, J.V.,
Joseph Sotro, Sr., Tax Matters Partner
13262-99 River City Ranches #7, J.V.,*
Jeffry Bergamyer, Tax Matters Partner
16557-99 River City Ranches #1, J.V., Stephen Hughes,
Tax Matters Partner
16563-99 Ovine Genetic Technology Syndicate
1987-1, J.V., Linda Routzahn,
Tax Matters Partner
- 114 -
16568-99 River City Ranches #5, J.V., Stephen Hughes,
Tax Matters Partner
16570-99 River City Ranches #3, J.V., Michael Dale,
Tax Matters Partner
16572-99 River City Ranches #4, J.V., Leon Shepard,
Tax Matters Partner
16574-99 River City Ranches #2, J.V., David Britton,
Tax Matters Partner
16578-99 River City Ranches #7, J.V.,*
Jeffry Bergamyer, Tax Matters Partner
16581-99 River City Ranches #6, J.V.,
Joseph Sotro, Sr., Tax Matters Partner
17125-99 Ovine Genetic Technology 1990, J.V.,
Leon Shepard, Tax Matters Partner
_________________
*--River City Ranches 1985-2, J.V., was formed and began
operating in 1987. In 1991, the partnership became known as
River City Ranches #7, J.V.