T.C. Memo. 2005-104
UNITED STATES TAX COURT
SANTA MONICA PICTURES, LLC, PERRY LERNER, TAX MATTERS PARTNER,
Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
CORONA FILM FINANCE FUND, LLC, PERRY LERNER, TAX MATTERS PARTNER,
Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket Nos. 6163-03, 6164-03.* Filed May 11, 2005.
George W. Connelly, Jr., Linda S. Paine, and Phyllis Ann
Guillory, for petitioner.
James P. Thurston, H. Clifton Bonney, Jr., and Kenneth C.
Peterson, for respondent.
*
Petitioner in docket No. 6163-03 is Santa Monica Pictures,
LLC (SMP), Perry Lerner, Tax Matters Partner. Petitioner in
docket No. 6164-03 is Corona Film Finance Fund, LLC (Corona),
Perry Lerner, Tax Matters Partner. By Order dated Jan. 16, 2004,
we consolidated these cases for purposes of trial, briefing, and
opinion. References to petitioner in this opinion are to Perry
Lerner in his capacity as tax matters partner of SMP and Corona.
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TABLE OF CONTENTS
FINDINGS OF FACT ....................................... 13
I. The Ackerman Group ................................. 13
A. Perry Lerner ................................... 13
B. Peter Ackerman ................................. 14
C. Somerville S Trust ............................. 15
D. Rockport Capital, Inc. ......................... 16
E. Rockport Advisors, Inc. ........................ 16
F. Crown Capital Group ............................ 16
II. The Credit Lyonnais Group ........................... 17
A. Credit Lyonnais ................................. 17
B. Consortium de Realisation ....................... 18
C. Generale Bank Nederlands ........................ 19
III. Metro-Goldwyn-Mayer, Inc. ........................... 19
A. History of MGM Before 1990 ...................... 19
B. Pathe Acquisition of MGM ........................ 20
C. Sealion Corp. ................................... 20
D. Cashflow Problems of MGM-Pathe .................. 21
E. Facility Agreements with CLBN ................... 22
F. Credit Lyonnais Takes Control of MGM ............ 23
G. 1993 Financial Restructuring .................... 26
H. Carolco Pictures, Inc. .......................... 29
I. Sealion Settlement ............................. 33
J. Credit Lyonnais Decides to Sell New MGM ......... 33
IV. Safari Acquisition Co. .............................. 34
A. The Safari Consortium ........................... 34
B. Safari Indicates Its Interest In New MGM ........ 35
C. Investigation of MGM ............................ 36
D. Kerkorian Moves In and Buys MGM ................. 38
E. Debt Release and Assumption Agreement ........... 39
F. Subparticipation Agreement ...................... 40
G. Dissolution of MGM Holdings and Formation
of SMHC ......................................... 41
V. The CDR Transaction ................................. 41
A. Initial Contact with Mr. Jouannet ............... 41
B. Negotiation and Drafting Process ................ 43
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1. Rockport Capital Confirms Its Interest ...... 43
2. Draft Term Sheet and Letter Agreements ...... 44
3. Further Negotiation and Drafting ............ 48
4. Santa Monica Pictures, LLC, is Formed ....... 49
C. Final Agreements and Documents .................. 49
1. Side Letter Agreement ....................... 49
2. Exchange and Contribution Agreement ......... 51
3. SMP LLC Agreement ........................... 53
a. Amendment No. 1 ......................... 55
b. Amendment No. 2 ......................... 55
4. Deposit Account Agreement ................... 57
5. Advisory Fee Agreement ...................... 57
6. Consent ..................................... 58
D. Assignment to Santa Monica Finance, B.V. ........ 58
E. Exercise of the Put ............................. 59
VI. Film Rights Contributed to SMHC ..................... 59
A. Film Titles and Development Projects ............ 59
B. History of the EBD Film Library ................. 61
1. Epic Productions ............................ 61
2. EBD (Rotterdam) Finance, B.V. ............... 62
3. Selection of Film Titles for CDR ............ 62
4. Assignments Before the Contributions
to SMHC ..................................... 63
5. Storage Conditions of the EBD Film
Library ..................................... 64
VII. Due Diligence for the CDR Transaction ............... 65
A. James Rhodes .................................... 65
B. Troy & Gould .................................... 67
1. Chain-of-Title and Record Search ............ 67
2. Access Letters .............................. 69
VIII. Other Film Activities ............................... 70
IX. Relationship with TroMetro Films, LLC ............... 71
A. John H. van Merkensteijn ........................ 71
B. TroMetro Films, LLC ............................. 71
C. TroMetro’s Purchases of SMP’s Receivables ....... 72
1. First Note Purchase Agreement ............... 72
2. Second Note Purchase Agreement .............. 74
3. Purchase Price Determinations ............... 75
4. Payments on the TroMetro Notes .............. 75
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X. Distribution Agreements ............................. 76
A. The TroMetro Distribution Agreement ............. 76
B. The Troma Distribution Agreement ................ 77
C. Troma Entertainment, Inc. ....................... 77
D. Troma’s Distribution of the EBD Film Library .... 78
1. Distribution History ........................ 78
2. Distribution Revenue and Expenses ........... 79
XI. Transactions with Imperial Credit Industries, Inc. .. 80
A. Imperial Credit Industries, Inc. ................ 80
B. Shopping for Tax Deals .......................... 81
C. Proposed Transaction with SMP ................... 82
D. Proposed Transaction with Corona ................ 84
1. Formation of Corona Film Finance
Fund, LLC ................................... 84
2. The Corona Transaction ...................... 85
3. Initial Purchase of SMP’s Interest
in Corona ................................... 88
4. Additional Purchase of SMP’s Interest
in Corona ................................... 89
5. Sale of the $79 Million Receivable .......... 91
6. Imperial’s Capital Contribution ..... ....... 92
7. Treasury Bills ........................ ..... 93
XII. Subsequent Transactions Involving TroMetro
and Troma .......................................... 93
A. Capital Contribution Agreement ................. 93
B. Assumption Agreement ........................... 94
C. Transfer and Assignment of the Carolco
Securities ..................................... 94
D. SMHC and Troma Merger .......................... 94
1. SMHC Merges into Troma ..................... 94
2. SMHC’s Dissolution ......................... 95
3. Tax Return Treatment of the Transaction .... 95
4. Termination of the Distribution
Agreements ................................. 96
E. Letter Agreement with TroMetro ................. 97
F. Troma Finance, LLC ............................. 97
XIII. Business Characteristics of SMP, Corona, and SMHC .. 98
A. SMP ............................................ 98
B. Corona ......................................... 99
C. SMHC ........................................... 99
XIV. Partnership Tax Returns ............................ 99
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A. SMP ............................................ 99
B. Corona ......................................... 101
C. Mr. and Mrs. Ackerman .......................... 101
XV. Notices of Final Partnership Administrative
Adjustments ........................................ 103
A. SMP ............................................ 103
B. Corona ......................................... 104
OPINION ................................................... 105
I. Partnership Tax Rules ............................. 108
A. In General ..................................... 108
B. Claimed Application of Partnership Tax Rules ... 112
II. Burden of Proof .................................... 113
III. Economic Substance ................................. 115
A. Parties’ Contentions ........................... 115
B. General Legal Principles ....................... 117
C. Summary of Conclusions ......................... 120
D. Subjective Business Purpose .................... 121
1. Banks’ Purposes ............................ 122
a. Banks’ Prior History With
Film Business .......................... 125
b. Banks’ Regulatory Environment .......... 128
c. Why the Ackerman Group? ................ 128
d. Inattention to Film Rights in
Negotiations ........................... 129
e. Selection of EBD Film Rights ........... 130
f. Conclusion ............................. 131
2. Ackerman Group’s Purposes .................. 131
a. Mr. Lerner’s and Mr. Ackerman’s
Backgrounds ............................ 132
b. Focus on Tax Attributes ................ 134
c. Nature of EBD Film Rights .............. 135
d. Purported Interest in CDR Library ...... 145
e. Purported Springboard for New Library .. 147
f. Acquiring NOLs for a Film Business ..... 147
g. Contemporaneous Expression of Purpose .. 149
3. Conclusion ................................. 150
E. Objective Economic Substance ................... 151
1. Economic Significance of Banks’
“Contributions” ............................ 152
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a. Advisory Fee and Put Price ............. 153
i. Banks’ Understanding .............. 155
ii. Ackerman Group’s Understanding .... 157
iii. Negotiation and Drafting Process .. 159
b. Redemption and Liquidation Rights ...... 167
c. SMP’s Conversion Option ................ 169
d. Distribution Rights .................... 171
e. Carolco Securities ..................... 174
2. Economic Benefits for the Ackerman Group ... 177
3. EBD Film Library ........................... 180
a. Petitioner’s Expert .................... 180
i. Income Projections ................ 181
ii. Cost Projections .................. 183
iii. Net Cashflows ..................... 184
iv. Valuations ........................ 184
v. Market Approach ................... 185
b. Respondent’s Expert .................... 186
i. Income Projections ................ 187
ii. Cost Projections .................. 189
iii. Net Cashflows ..................... 190
iv. Valuations ........................ 191
v. Market Approach ................... 191
c. Court’s Analysis ....................... 192
i. Reconciliation of Expert Opinions . 192
ii. Exclusion of Certain Film Titles .. 193
iii. Analysis of Expert Opinions ....... 196
iv. Conclusion ........................ 203
4. Carolco Securities ......................... 208
5. Net Operating Losses ....................... 215
6. Conclusion ................................. 216
F. Other Considerations ........................... 217
1. SMP’s Other Film-Related Activities ........ 217
2. Relationship Between the Parties ........... 219
3. Ackerman Group’s Exploitation of
Tax Attributes ............................. 219
4. Congressional Intent ....................... 222
G. Conclusion ..................................... 226
IV. Step Transaction Doctrine .......................... 227
A. Legal Principles ............................... 227
B. Parties’ Arguments ............................. 229
C. Court’s Analysis ............................... 231
D. Conclusion ..................................... 236
V. Basis Arguments .................................... 237
A. Worthlessness Issue ............................ 237
1. Contribution of Worthless Assets ........... 238
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2. Worthlessness of Debts ..................... 240
B. Bona Fide Indebtedness Issue ................... 244
VI. Corona Transaction ................................. 254
VII. Sales of Receivables to TroMetro ................... 257
VIII. Summary of Conclusions So Far ...................... 259
IX. At-Risk and Passive Activity Loss Rules ............ 261
X. SMP’s Basis in SMHC Stock .......................... 262
XI. Accuracy-Related Penalties ......................... 264
A. Burden of Production ........................... 265
B. Gross Valuation Misstatements .................. 267
C. 20-Percent Accuracy-Related Penalties .......... 275
1. Negligence ................................. 275
2. Substantial Understatement of Income Tax ... 279
D. Reasonable Cause ............................... 284
1. August 1996 Memorandum From
Shearman & Sterling ........................ 289
2. Ernst & Young Memorandum ................... 292
3. May 12, 1997, Shearman & Sterling
Memorandum ................................. 293
4. October 10, 1997, Shearman & Sterling
Memorandum ................................. 298
5. February 26, 1998, Shearman & Sterling
Memorandum ................................. 301
6. Grant Thornton Memorandum .................. 303
7. Opinion From Chamberlain Hrdlicka .......... 307
8. Conclusion ................................. 311
XII. Evidentiary Matters ................................ 312
A. Daubert Issues ................................. 312
1. Mr. Crawford ............................... 313
2. Ms. Nemschoff .............................. 316
a. Ms. Nemschoff’s Expert Opinion ......... 317
b. Petitioner’s Arguments ................. 318
c. Court’s Analysis ....................... 319
3. Mr. Shapiro ................................ 322
a. Mr. Shapiro’s Expert Opinion ........... 322
b. Court’s Analysis ....................... 325
B. Mr. Jouannet’s Response (Exhibit 226-P) ........ 328
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MEMORANDUM FINDINGS OF FACT AND OPINION
THORNTON, Judge: These consolidated cases stem from
transactions that occurred in the wake of the 1996 sale of the
legendary motion picture company Metro-Goldwyn-Mayer (MGM) by the
French banking giant Credit Lyonnais.
Peter Ackerman, his business partner Perry Lerner, and their
related entities (collectively, the Ackerman group) had helped
organize a consortium which made a bid to purchase MGM from
Credit Lyonnais. The consortium lost out to Kirk Kerkorian’s
winning bid. The Ackerman group then set out to acquire MGM’s
parent company, Santa Monica Holdings Corp. (SMHC), which Credit
Lyonnais still owned.
SMHC was largely devoid of assets; it owed about $1 billion
to Credit Lyonnais and its cluster of subsidiaries, adjuncts, and
associated companies (the Credit Lyonnais group).1 There were,
however, tantalizing tax attributes: Credit Lyonnais’s purported
tax basis in the SMHC indebtedness was about $1 billion; its
purported tax basis in the SMHC stock was about $665 million.
1
This debt represented part of the approximately $2 billion
that the Credit Lyonnais group had previously lent or advanced to
MGM during its brief, unprofitable relationship with MGM, first
as lenders to MGM and then, after foreclosing, as owners of MGM.
Credit Lyonnais had transferred the approximately $1 billion of
debt from the MGM operating company to Santa Monica Holdings
Corp. (SMHC) (or more precisely to its predecessor, MGM Group
Holdings Corp.) partly to facilitate the 1996 sale of the MGM
operating company to Kirk Kerkorian.
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To acquire SMHC in a manner that might preserve the tax
attributes, the Ackerman group formed a new limited liability
company, Santa Monica Pictures, LLC (SMP), which elected to be
treated as a partnership for Federal tax purposes. The Credit
Lyonnais group agreed to contribute to SMP the high-basis, low-
value indebtedness and SMHC stock after first contributing to
SMHC a library of what might charitably be called B-grade films.
In exchange, the Credit Lyonnais group was to receive preferred
interests in SMP and a $5 million “advisory fee”.2 Pursuant to a
side agreement, the Ackerman group committed to purchase these
preferred interests from the Credit Lyonnais group, upon demand,
for a $5 million “put” price.3
In late 1996, the Credit Lyonnais group made the agreed-upon
contributions to SMP. Some 3 weeks later, the Credit Lyonnais
group exercised its “put”, sold its SMP interests to Somerville S
Trust (Mr. Ackerman’s grantor trust), and so departed SMP. SMP
was left holding, instead of the proverbial bag, the high-basis,
low-value assets that the Credit Lyonnais group had contributed
and, indirectly (through SMHC), the B-grade films.
2
More precisely, the $5 million advisory fee was to be
paid to one of the Credit Lyonnais group members, Credit Lyonnais
International Services (CLIS).
3
More precisely, the commitment to purchase the Credit
Lyonnais group’s preferred interests was made by one of the
Ackerman group members, Rockport Capital, Inc.
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Relying upon certain partnership basis rules (i.e., sections
704(c), 743 and 754), the Ackerman group claimed to succeed to
Credit Lyonnais’s purported $1 billion tax basis in the
contributed SMHC indebtedness and purported $665 million tax
basis in the SMHC stock.4 In separate transactions in 1997 and
1998, SMP sold to TroMetro Films, LLC (TroMetro) portions of the
SMHC indebtedness for much less than the claimed basis. SMP also
formed another partnership, Corona Film Finance Fund, LLC
(Corona) and contributed to it part of the SMHC indebtedness.5
SMP then sold most of its ownership interest in Corona to
Imperial Credit Industries, Inc. (Imperial), for much less than
its claimed basis. On its partnership tax returns for 1997 and
1998, SMP claimed capital losses totaling, altogether, about $300
million from these various transactions. These claimed losses
passed through for the primary benefit of Mr. Ackerman.
Corona, meanwhile, sold to TroMetro the SMHC indebtedness
that SMP had contributed at Corona’s formation. On its
4
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the taxable years at
issue and, in certain references, as amended. All Rule
references are to the Tax Court Rules of Practice and Procedure.
5
In our findings of fact, we use terms such as
“indebtedness” or “contributions” only for convenience and not to
denote any legal significance.
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partnership tax return for 1997, Corona claimed a capital loss of
about $79 million from this transaction.6
Respondent issued separate notices of final partnership
administrative adjustment (FPAAs) to Perry Lerner as tax matters
partner for SMP and Corona with respect to their partnership
taxable years ended December 31, 1997, and December 31, 1998. In
the FPAAs, respondent disallowed SMP’s and Corona’s
aforementioned claimed capital losses.7 On a number of theories,
including the application of substance over form principles,
respondent argues that SMP and Corona are not entitled to the
indebtedness bases or the associated capital losses that those
6
This claimed loss essentially duplicated losses that Santa
Monica Pictures, LLC (SMP) had claimed from its sale to Imperial
Credit Industries, Inc. (Imperial), of SMP’s ownership interest
in Corona Film Finance Fund, LLC (Corona). Most of Corona’s
claimed loss passed through for the benefit of Imperial. As a
“fee” for the tax benefits it received, Imperial paid, indirectly
to SMP through Corona, almost $15 million.
At some point in these proceedings, Imperial filed a
bankruptcy petition. Consequently, any partnership items of
Imperial, including the loss that passed through from Corona,
became nonpartnership items on the date the bankruptcy petition
was filed. Sec. 301.6231(c)-7(a), Temporary Proced. & Admin.
Regs., 66 Fed. Reg. 50561 (Dec. 4, 2001). Imperial is not a
party to these proceedings.
7
In the notice of final partnership administrative
adjustment issued to Corona for its 1998 taxable year, respondent
determined, as the lone adjustment in that FPAA, an $80 million
increase in Corona’s reported distributions. Respondent concedes
that this adjustment is no longer a partnership item and that
this Court lacks jurisdiction to redetermine that adjustment.
Based on that concession, the Court will dismiss the taxable year
1988 as moot at docket No. 6164-03.
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entities claimed on their respective 1997 partnership tax returns
and that SMP claimed on its 1998 partnership tax return.
Petitioner disagrees. Petitioner contends, among other
things, that substance over form principles do not apply because,
when the contribution of SMHC stock and debt occurred (and
thereafter), the Ackerman group had the legitimate business
purpose of getting into the film business with the Credit
Lyonnais group.
Ultimately, we must decide: (1) Whether SMP is entitled to
a $147,486,000 capital loss on its sale to TroMetro of a $150
million receivable in 1997; (2) whether SMP is entitled to
capital losses of $11,647,367 and $62,237,061 on its sales to
Imperial of portions of its Corona membership interest in 1997;
(3) whether SMP is entitled to a $80,190,418 capital loss on its
sale to TroMetro of an $81 million receivable in 1998; (4)
whether Corona is entitled to a capital loss on its sale to
TroMetro of a $79 million receivable in 1997;8 (5) whether
accuracy-related penalties under section 6662(a) or (h) apply
with respect to the partnership adjustments to SMP’s 1997 and
1998 returns and Corona’s 1997 return.9
8
Corona claimed a $78,768,955 capital loss from the sale of
the $79 million receivable in 1997. We do not have jurisdiction
over the portion of this loss that passed through to Imperial;
i.e., $74,671,378. See supra note 5.
9
On SMP’s FPAA for 1998, respondent also determined a
(continued...)
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FINDINGS OF FACT
SMP is a Delaware limited liability company with its
principal place of business in New York, New York. Corona is a
Delaware limited liability company with its principal place of
business in New York, New York.
The parties have stipulated many facts, which are
incorporated herein by this reference.
I. The Ackerman Group
A. Perry Lerner
During the taxable years at issue, Perry Lerner was the
managing member and the tax matters partner of SMP and Corona.
Mr. Lerner is a successful tax lawyer. He graduated from
Clairmont McKenna College in Clairmont, California, in 1965 and
from Harvard Law School in 1968. From 1968 to 1970, Mr. Lerner
worked as a clerk/attorney advisor to Judge Arnold Raum of the
U.S. Tax Court. From 1970 to 1976 and again from 1979 to 1980,
Mr. Lerner worked for the law firm of Kindall & Anderson in Los
Angeles. From 1976 to 1979, Mr. Lerner worked as an attorney
advisor for the U.S. Treasury Department, Office of International
Tax Counsel, in Washington, D.C.
9
(...continued)
$211,407 adjustment for certain long-term capital gain that SMP
did not pass through on its 1998 partnership tax return.
Respondent does not seek to impose accuracy-related penalties
pursuant to sec. 6662 with respect to this adjustment.
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From approximately 1980 to 1995, Mr. Lerner worked for the
law firm of O’Melveny & Myers, LLP. He worked in the firm’s Los
Angeles office until 1986 or 1987, before leaving to head up the
firm’s London office. In 1992, he returned to the firm’s Los
Angeles office for about a year before moving to the firm’s New
York office. In 1996, Mr. Lerner retired from O’Melveny & Myers
to become a sole practitioner.
B. Peter Ackerman
Peter Ackerman is a successful businessman. He attended
Colgate University, where he received a bachelor’s degree. He
attended graduate school at the Fletcher School of Law and
Diplomacy, ultimately receiving a Master of Arts and Law and
Diplomacy, and a Ph.D. in international affairs.
From 1978 to 1989, Mr. Ackerman worked at Drexel Burnham
(formerly Burnham & Co.) with Michael Milken in the high-yield
and convertible bond department. While there, he was exposed to
buying and selling high-yield bonds, recapitalizing (leveraging)
companies, restructuring troubled businesses, and financing and
investing in businesses.
During the period of Mr. Ackerman’s employment there, Drexel
Burnham arranged the financing for major film companies,
including Warner Brothers, Paramount, Turner, CNN, and Orion.
Mr. Ackerman was actively involved in structuring the financing
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for the transaction wherein Kirk Kerkorian sold the MGM library
(for the first time) to Ted Turner.
In 1990, Mr. Ackerman was invited to become a visiting
scholar at the International Institute for Strategic Studies in
London. He stayed there until 1994 while he wrote and published
a 400-page book called “Strategic Nonviolent Conflict.” During
this period, Mr. Ackerman met Mr. Lerner. Mr. Lerner represented
Mr. Ackerman in certain legal matters, including issues stemming
from Drexel Burnham’s bankruptcy and issues relating to Mr.
Ackerman’s estate planning.
C. Somerville S Trust
During the taxable years at issue and at all relevant times,
Mr. Ackerman was the beneficiary of the Somerville S Trust, which
was treated as a grantor trust for Federal income tax purposes.
All items of income, expense, or loss from Somerville S Trust
were reported on Mr. Ackerman and his wife’s joint Federal income
tax returns.
Somerville S Trust was the capital source for many of Mr.
Ackerman’s investments, including the transaction involving the
Credit Lyonnais group. Mr. Lerner was the trustee of the
Somerville S Trust, and he was fully empowered to transfer or
invest its assets.
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D. Rockport Capital, Inc.
During the taxable years at issue and at all relevant times,
Mr. Ackerman conducted all his investment activities through a
wholly owned advisory company called Rockport Capital, Inc.
(Rockport Capital). Rockport Capital was a Delaware subchapter S
corporation. Mr. Lerner was an officer in Rockport Capital.
E. Rockport Advisors, Inc.
After Mr. Lerner retired from O’Melveny & Myers in 1996, Mr.
Ackerman asked Mr. Lerner to continue representing him. Mr.
Ackerman was interested in various investment opportunities that
were coming his way, and he often asked Mr. Lerner’s legal advice
about them. Initially, Mr. Lerner devoted about half his time to
Mr. Ackerman’s affairs. As a product of this representation, Mr.
Lerner formed Rockport Advisors, Inc. (Rockport Advisors), which
he owned. Rockport Capital and Rockport Advisors operated
together with respect to Mr. Ackerman’s investment activities,
including the transaction involving the Credit Lyonnais group.
F. Crown Capital Group
In early 1997, Mr. Lerner ceased using Rockport Advisors
with respect to Mr. Ackerman’s investments. Instead, Mr. Lerner
created a new firm, Crown Capital Group, Inc. (Crown Capital),
located in New York, to investigate and manage Mr. Ackerman’s
investments. Mr. Lerner owned 49 percent and Mr. Ackerman’s
nephew owned 51 percent of Crown Capital.
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Crown Capital provided the due diligence and management
services for Mr. Ackerman’s investments, including SMP, a theater
exhibition company (Resort Theaters), a textile company, a small
insurance company, a business involved in manufacturing Pokemon
game cards, a company that manufactured sample wallpaper and
carpet boards, a newspaper stuffing business, a grocery business,
and a number of private equity investments. Oftentimes, Crown
Capital would make an investment in its own name and then
transfer it into some new entity established for Mr. Ackerman.
In some cases, Crown Capital also acted on behalf of SMP or SMHC,
although there was no written agency agreement between these
companies.
II. The Credit Lyonnais Group
A. Credit Lyonnais
During the early 1990s and the taxable years at issue,
Credit Lyonnais, S.A. (Credit Lyonnais), was a large European
banking and financial institution organized under the laws of
France. Credit Lyonnais was the direct or indirect parent of
other banking and financial institutions, including Credit
Lyonnais Bank Nederland, N.V. (CLBN), a bank organized under the
laws of the Netherlands, and Credit Lyonnais International
Services (CLIS). Credit Lyonnais acquired CLBN in the mid-1980s.
CLBN developed a large business of financing media entertainment
(e.g., film, television, etc.); it was partly responsible for
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Credit Lyonnais’s indirect financing and ownership of film
companies, including MGM.10
B. Consortium de Realisation
In 1995, Credit Lyonnais experienced a financial crisis.
Following the intervention of the French government, Credit
Lyonnais announced a restructuring program that was intended to
shore up its balance sheet going forward. Under the
restructuring program, Credit Lyonnais’s troubled investments and
loans, including its loans to film companies such as MGM, were
effectively transferred into a wholly owned subsidiary,
Consortium de Realisation (CDR). CDR was set up for the purpose
of liquidating and maximizing recovery on Credit Lyonnais’s “bad
assets”.
When CDR was set up, the Credit Lyonnais employees who were
working on the troubled entertainment loans were given the option
of transferring to CDR to continue working on those loans or
taking other positions within Credit Lyonnais. Rene-Claude
Jouannet, a longtime employee of Credit Lyonnais, transferred to
CDR, where he served as CDR’s general counsel.11
10
The Credit Lyonnais group’s loans to MGM and eventual
ownership of MGM are described in detail infra.
11
As we discuss infra, Mr. Jouannet played a significant
role in the transaction in which the Ackerman group acquired
SMHC.
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C. Generale Bank Nederland
In September 1995, CLBN was acquired by Generale Bank
Nederlands (Generale Bank).12 In this acquisition, CLBN’s “good”
and “bad” assets were transferred to Generale Bank. Credit
Lyonnais lent Generale Bank the money to purchase the “bad
assets” of CLBN, including the debt that MGM owed to CLBN. The
loan from Credit Lyonnais to Generale Bank was nonrecourse;
Generale Bank was not obligated to pay back the borrowed amount
except to the extent it realized anything on the bad assets.
III. Metro-Goldwyn Mayer, Inc.
A. History of MGM Before 1990
Metro-Goldwyn-Mayer, Inc., was established in 1924 as a
major film studio based in Los Angeles, California. Since its
establishment, Metro-Goldwyn-Mayer, Inc., has experienced
numerous reorganizations and name changes. For convenience, we
sometimes refer to Metro-Goldwyn-Mayer, Inc. (and its successors)
generally as “MGM”.
In 1981, MGM purchased United Artists (UA). The combined
entity then changed its name to MGM/UA Entertainment Co.
(MGM/UA). From 1981 through 1986, MGM/UA continued to produce
and distribute film and television products. In 1986, Kirk
12
The actual name is “Generale Banque.” We follow the
parties’ convention in referring to it in Anglicized fashion as
“Generale Bank.” Sometimes, in quoted material, the reference is
to “Generale Banque” or “GB.”
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Kerkorian, the majority shareholder of MGM/UA, entered into a
series of transactions with Turner Broadcasting System (TBS),
resulting in TBS’s acquisition of the pre-1986 MGM film library.
See, e.g., Turner Broad. Sys., Inc. & Subs. v. Commissioner, 111
T.C. 315 (1998). MGM/UA Communications Co. (MGM Communications)
was formed out of the remaining assets of MGM and UA, including
the UA film library. In 1988, MGM Communications began to
explore selling all or part of these assets.
B. Pathe Acquisition of MGM
In June 1990, the board of directors of MGM Communications
agreed to sell the company for approximately $1.33 billion
(excluding certain additional costs) to Pathe Communications
Corp. (Pathe), which was indirectly controlled by Giancarlo
Parretti and Florio Fiorini.13 Pursuant to this agreement, MGM-
Pathe Communications Co. (a wholly owned subsidiary of Pathe)
merged with and into MGM Communications (the 1990 merger). The
surviving corporation was MGM-Pathe Communications Co. (MGM-
Pathe). As a result of the 1990 merger, Pathe owned 98.5 percent
of MGM-Pathe stock.
C. Sealion Corp.
In connection with Pathe’s acquisition of MGM, Credit
Lyonnais lent $150 million to Sealion Corp., N.V. (Sealion)
13
To finance this purchase price, Pathe Communications
Corp. relied, in part, on its available lines of credit from
CLBN.
- 21 -
pursuant to a credit agreement dated October 30, 1990. Sealion
then lent the $150 million to Pathe, which in turn used the funds
to finance part of the acquisition of MGM Communications.
Sealion entered into a stock purchase agreement dated as of
November 1990, with Melia International N.V. (Melia), which owned
51.9 percent of Pathe’s outstanding common stock. Pursuant to
the stock purchase agreement, Sealion purchased 900,000 shares of
MGM-Pathe’s common stock (constituting 1.5 percent of the common
stock of MGM-Pathe) from Melia. Sealion in turn pledged its 1.5-
percent interest in MGM-Pathe to Credit Lyonnais as security for
the $150 million loan. Thereafter, Sealion, Melia, and Pathe
controlled the boards of directors of Pathe and MGM-Pathe.
D. Cashflow Problems of MGM-Pathe
Before the Pathe acquisition, MGM relied on cashflows from
its distribution agreements to conduct its day-to-day operations
and to generate revenue. To finance Pathe’s recent acquisition
of MGM/UA Communications, however, Mr. Parretti entered into new
distribution agreements which were then factored with financial
institutions, thereby depriving MGM of approximately 80 to 90
percent of its ordinary cashflow. Consequently, MGM-Pathe was
soon unable to finance its day-to-day operations, including
motion picture production and release. To fund all its operating
costs, including the payment of interest, MGM-Pathe had to rely
on external capital in the form of continuous borrowing from the
- 22 -
Credit Lyonnais group. MGM-Pathe’s weak financial condition was
well-known in the entertainment industry and made it harder to
attract film talent to MGM.
E. Facility Agreements with CLBN
On March 22, 1991, Pathe and MGM-Pathe entered into a so-
called $250 million interim revolving credit facility with CLBN
(the $250 million facility), which incorporated all of MGM-
Pathe’s borrowing from November 1, 1990.14 All borrowing under
the $250 million facility was at the absolute discretion of CLBN
and was secured by MGM-Pathe’s assets and Pathe’s interest in
MGM-Pathe stock.
On March 29, 1991, a group of MGM-Pathe’s creditors
(excluding CLBN) filed an involuntary chapter 7 bankruptcy
petition in U.S. Bankruptcy Court. To pay off its creditors
(other than CLBN) and allow it to emerge from bankruptcy, MGM-
Pathe entered into a so-called $145 million facility agreement
(the $145 million facility agreement) with CLBN dated as of April
12, 1991.15 Borrowing under the $145 million facility agreement
was secured by MGM-Pathe’s assets, as well as the stock of Pathe
and MGM-Pathe. As a result of the new financing, MGM-Pathe was
14
The name of this agreement did not necessarily control
the amount that was advanced under the agreement.
15
The name of this agreement did not necessarily control
the amount that was advanced under the agreement. Amounts
available under the $145 million facility agreement were in
addition to amounts available under the $250 million facility.
- 23 -
able to reach an accord with its creditors and emerge from
bankruptcy.
In connection with the $145 million facility agreement,
Pathe and certain of Melia’s stockholders and subsidiaries
entered into certain agreements in April 1991, whereby those
parties guaranteed MGM-Pathe’s obligations under the $145 million
facility agreement and pledged to CLBN all shares of Pathe, MGM-
Pathe, and Melia owned by those parties, to secure all
indebtedness then owing by Pathe (and certain affiliates) to CLBN
(the 1991 pledge agreement). The shares covered by these
agreements represented approximately 89.3 percent of the
outstanding common stock of Pathe and 98.5 percent of the stock
of MGM-Pathe, which shares were held in irrevocable voting trust
agreements in favor of CLBN. As part of this process, Mr.
Parretti entered into corporate governance agreements with CLBN
wherein Mr. Parretti and Pathe ceded responsibility for the day-
to-day management of MGM-Pathe to Credit Lyonnais. On June 17,
1991, as a result of certain actions by Mr. Parretti in violation
of the corporate governance agreements between him and CLBN, CLBN
removed Mr. Parretti and certain other directors of MGM-Pathe.
F. Credit Lyonnais Takes Control of MGM
As of June 1991, Credit Lyonnais exercised effective control
over MGM-Pathe. It controlled all management decisions at MGM-
Pathe and elected MGM-Pathe’s board of directors. During this
- 24 -
period, Credit Lyonnais maintained a constant presence at MGM-
Pathe’s corporate offices.
MGM-Pathe’s deepening financial problems, however, strained
its relationship with Credit Lyonnais. For example, during the
quarter ended March 31, 1992, MGM-Pathe’s operating expenses and
financing costs exceeded its operating receipts, and its
management expected that operating expenses and financing costs
would continue to exceed operating receipts for the foreseeable
future. MGM-Pathe’s market share was less than two percent; many
of its valuable assets had either been sold or factored to
finance Pathe’s acquisition of MGM-Pathe. As a result, MGM-Pathe
remained entirely dependent on CLBN for additional capital to
fund its ongoing operations. MGM-Pathe’s deepening financial
problems persisted well into 1993.
As of March 31, 1992, CLBN had lent MGM-Pathe $124,288,000
pursuant to the so-called $250 million facility agreement and
$398,223,000 pursuant to the so-called $145 million facility
agreement. MGM-Pathe was in default on these obligations. On
April 16, 1992, CLBN notified Pathe and MGM-Pathe that it was
exercising its right under the 1991 pledge agreement to foreclose
on 59.1 million shares of the common stock of MGM-Pathe
(representing 98.5 percent of the outstanding common stock of
that company). The letter stated that the foreclosure auction
was scheduled for May 7, 1992, and that CLBN intended to bid-in,
- 25 -
or cause to be bid-in, at least $400 million of the secured
indebtedness. CLBN also advised Pathe and MGM-Pathe that $400
million would be the minimum bid-in amount and that the sale of
40.2 million shares would be subject to a prior pledge in favor
of Credit Lyonnais, as assignee of Sealion.
Credit Lyonnais formed MGM Holdings Corp. (MGM Holdings) to
effect the foreclosure on the common stock of MGM-Pathe. As of
May 1, 1992, CLBN sold to MGM Holdings approximately $483,489,000
of Pathe’s and MGM-Pathe’s indebtedness.16 Credit Lyonnais
foreclosed on the MGM-Pathe stock to recover amounts that it had
invested in MGM; it was not interested in any long-term
investment in a film business. As a result of the foreclosure,
MGM Holdings owned 98.5 percent of MGM-Pathe’s common stock and
had the power to elect the entire board of directors of MGM-
Pathe. Nevertheless, the Credit Lyonnais group was working on a
5-year time clock from the date of foreclosure, because U.S.
banking laws required the Credit Lyonnais group to sell MGM
within 5 years (i.e., on or before May 7, 1997).
On May 20, 1992, MGM-Pathe changed its name to Metro-
Goldwyn-Mayer, Inc. (MGM).
16
The parties agreed to a purchase price equal to the
aggregate principal amount outstanding on the debt, together with
all interest, fees, and other amounts then due and owing.
- 26 -
G. 1993 Financial Restructuring
After the foreclosure, MGM was a tarnished brand. As a
maker of motion picture products, it was minimally competitive.
MGM had effectively gotten out of the television business and had
no activities in ancillary media such as interactive and video
games. MGM had a substantial film library, including the
considerable UA library, but it was not aggressively exploiting
it. MGM’s financial position was precarious. It was functioning
on a credit facility that CLBN had granted in an emergency
fashion. Although the facility was supposed to be in the $150
million range, CLBN’s exposure had risen to half a billion
dollars. MGM needed additional funding for its production
activities. This funding came directly or indirectly from the
Credit Lyonnais group. The Credit Lyonnais group meanwhile had
already invested approximately $1.6 billion in MGM-Pathe,
including amounts that it had lent to Pathe, to various entities
in connection with Pathe’s acquisition of MGM-Pathe, and to MGM-
Pathe.
Credit Lyonnais determined that it needed to maintain MGM’s
operations to increase MGM’s value. Because it appeared
impossible to sell MGM under satisfactory conditions, it was
necessary to rebuild it, which required both time and financial
means. Consequently, effective April 1, 1993, CLBN provided MGM
- 27 -
a commitment for an additional $190 million, 3-year revolving
credit facility ($190 million facility).17
In light of Credit Lyonnais’s escalating financial exposure
and MGM’s dwindling business prospects, Credit Lyonnais
formulated a business strategy for MGM which included:
(1) completely replacing the company’s management; (2)
restructuring MGM’s finances to replenish its equity capital and
to significantly reduce the weight of its debt; and (3)
establishing a 5-year business plan intended to reposition MGM
among the film industry’s “major players” and to increase the
value of its assets, particularly through an intensive program of
new film production.18
In July 1993, MGM began a comprehensive restructuring of its
capital structure and its corporate management (the 1993
restructuring). This restructuring consisted primarily of
splitting MGM into two entities. The goal was to set up a
separate operating company which would be capitalized with $1
billion in equity and would have sufficiently reduced liabilities
to allow additional borrowing from lenders other than Credit
Lyonnais. MGM was renamed MGM Group Holdings Corp. (MGM Group
17
The name of this agreement did not necessarily control
the amount that was advanced under the agreement.
18
Credit Lyonnais selected a 5-year business plan because
of U.S. laws requiring the bank to divest itself of MGM within 5
years of acquisition.
- 28 -
Holdings). MGM Group Holdings contributed substantially all its
assets (including its film and television assets) and some
liabilities to a new subsidiary, which was later named Metro-
Goldwyn-Mayer, Inc. (New MGM).19
In the 1993 restructuring, MGM’s debt to CLBN was divided
between MGM Group Holdings and New MGM. MGM Group Holdings
retained approximately $960 million of the debt, which was
restated and consolidated in an amended, restated, and
consolidated credit agreement with CLBN. MGM Group Holdings
executed a $965,904,188.96 note dated December 30, 1993, which
was due and payable on July 15, 1997. This $966 million debt was
unsecured by New MGM’s assets; $800 million of the principal
amount was non-interest bearing.
As of December 31, 1993, New MGM owed CLBN approximately
$618 million in principal and interest. New MGM and CLBN entered
into an amended, restated, and consolidated credit agreement (the
New MGM credit agreement) in which the loans that New MGM assumed
in the 1993 restructuring were consolidated and converted into a
term loan with a due date of July 15, 1997 (the CLBN term loan).
In accordance with the 1993 restructuring, New MGM and
Credit Lyonnais entered into a working capital agreement dated
19
As part of the 1993 restructuring, MGM Group Holdings
Corp. retained its accrued tax attributes, including its accrued
net operating losses (NOLs). The 1993 restructuring included the
appointment of a new management team under Frank Mancuso as chief
executive officer.
- 29 -
December 30, 1993 (the working capital agreement). The working
capital agreement provided for payment of interest on the amounts
that Credit Lyonnais had previously lent to MGM. These amounts
became due on July 15, 1997. New MGM executed a $490 million
note dated December 30, 1993. In connection with the working
capital agreement and the New MGM credit agreement, MGM Group
Holdings pledged its New MGM stock, as well as New MGM’s film and
other assets, to Credit Lyonnais.
CLBN advanced $8,994,970.32 in additional funds to MGM Group
Holdings pursuant to a demand promissory note (CLBN demand note)
and an irrevocable notice of drawing, both dated October 26,
1994. On April 26, 1995, MGM Group Holdings made an additional
drawing of $595,750.56 under the CLBN demand note. In all, CLBN
advanced a total of $9,590,720.88 in additional funds to MGM
Group Holdings.
H. Carolco Pictures, Inc.
In 1993, Credit Lyonnais, using MGM as a vehicle, made an
investment in Carolco Pictures, Inc. (Carolco), and sought to
take an active role in that company’s operations. Carolco had
been a major motion picture producer, producing some of the
highest revenue-grossing motion pictures ever made, including
“Terminator 2: Judgment Day”, “Total Recall”, “Cliffhanger”,
“Basic Instinct”, and “Rambo: First Blood Part II”. Carolco
initially produced four to six major motion pictures a year but,
- 30 -
like MGM, was forced to cut production in the early 1990s due to
serious financial problems.
In 1993, Carolco underwent a financial restructuring (the
1993 Carolco restructuring) to reduce or satisfy Carolco’s
financial obligations and to provide additional capital to permit
Carolco to continue as a going concern. As part of the 1993
Carolco restructuring, MGM, with other investors, agreed to
invest in Carolco in exchange for distribution rights to
Carolco’s films.20 On May 25, 1993, in connection with the
restructuring, MGM Holdings purchased 30,000 shares of Carolco
preferred stock for $30 million and Carolco subordinated notes
for $30 million (the Carolco securities).21 Credit Lyonnais
provided MGM Holdings the funds for investing in the Carolco
securities.
As a result of the 1993 Carolco restructuring, Carolco’s
management began preparing some of Carolco’s motion picture
projects for eventual production. By January 1995, however, due
to the unexpectedly high cost of certain motion pictures it
became apparent that Carolco would have inadequate capital to
20
On May 1, 1993, Carolco and MGM entered into two
distribution agreements; a “Domestic Output Agreement”, and an
“International Output Agreement”, in which MGM was to distribute
Carolco films.
21
Between Jan. 15, 1994, and Oct. 15, 1995, Carolco issued
additional securities to MGM Holdings in lieu of quarterly
interest payments on the Carolco subordinated notes.
- 31 -
execute its business plan going forward. During the second half
of 1994 and early 1995, Carolco sold substantially all its rights
in such motion picture projects as “Crusades”, “Showgirls”, and
“Lolita” to raise operating capital and reduce payment
obligations. Carolco obtained certain accommodations from its
investors.
After discussions with its present investors and potential
new investors during 1994-95, it became apparent to Carolco that
the necessary additional capitalization required to continue
Carolco’s business plan was not going to be forthcoming.
Consequently, Carolco decided to sell its main film library and
certain other assets in hopes of generating cash with which it
could reduce its debt and pursue motion picture projects.
In October 1995, Twentieth Century Fox Film Corp. (Twentieth
Century Fox) offered approximately $50 million for the Carolco
film library, the projects, and the studio. Although accepting
this offer would have doomed Carolco’s prospects as a going
concern, Carolco decided to pursue the offer and began
negotiating a sale agreement. On November 10, 1995, Carolco and
Twentieth Century Fox executed an agreement providing for the
sale of substantially all of Carolco’s assets for approximately
$47.5 million and requiring Carolco to file a voluntary chapter
11 bankruptcy petition.
- 32 -
On November 10, 1995, Carolco filed a voluntary petition
under chapter 11 of the U.S. Bankruptcy Code. On November 22,
1995, Carolco filed a motion asking the bankruptcy court to issue
an order allowing Carolco to sell its assets to Twentieth Century
Fox for $47.5 million. On January 16, 1996, the bankruptcy court
held a hearing on Carolco’s motion, wherein Carolco announced
that Canal+ had offered $58 million for the Carolco film library
and related assets. In an order dated March 21, 1996, the
bankruptcy court approved the sale of Carolco’s film library and
related assets to Canal+ for $58 million.
Between September 13, 1996, and March 28, 1997, the debtors’
and creditors’ committee filed various successive plans of
reorganization. Under each of these plans of reorganization, the
holders of Carolco subordinated notes were in class 10 and the
holders of Carolco preferred stock were in class 12. In each
case, the securities holders were to receive nothing in Carolco’s
liquidation.
In an order dated April 3, 1997, the bankruptcy court
confirmed the fourth and final amended plan of reorganization.
The bankruptcy court confirmed that SMHC (MGM Group Holdings’
successor), which then held the Carolco securities, was to
receive nothing for the Carolco securities under this plan of
reorganization because it was classified as a holder of class 10
and 12 claims.
- 33 -
I. Sealion Settlement
In November 1995, Credit Lyonnais and Sealion entered into a
settlement agreement whereby: (i) Sealion assigned its 1.5-
percent interest in MGM Group Holdings stock to Credit Lyonnais,
and, in exchange, (ii) Credit Lyonnais accepted as repayment of
all sums that Sealion owed to it, the assignment to Credit
Lyonnais of the entire claim that Sealion held against Pathe
pursuant to its loan agreement with Pathe.
J. Credit Lyonnais Decides To Sell New MGM
As of 1994, MGM was not saleable; its filmed entertainment
business was still in financial disarray. Nevertheless, after
the 1993 restructuring and after nearly 2 years under its new
management team, MGM made a fair recovery. The management team’s
actions began bearing fruit with some successful film releases
such as “Stargate”, “Get Shorty”, and the next two “James Bond”
movies. MGM started to resemble a real operating motion picture
company once again.
Nonetheless, Credit Lyonnais’s investment in MGM was
considerable and never ending. As time went on, Credit Lyonnais
became very pessimistic about recovering its investment in MGM;
certainly after Credit Lyonnais transferred ownership of the MGM
stock to Consortium de Realisation (CDR) in 1995, Credit Lyonnais
had much less interest in putting money into MGM’s movies. As a
result, the number of movies in production at MGM diminished
- 34 -
considerably. Credit Lyonnais had reason to get out of its
investment in MGM as expeditiously as possible.
At some point, Credit Lyonnais decided to sell all the
assets of MGM. Credit Lyonnais assigned to CDR’s new management
team (which included Mr. Jouannet) the task of putting together
the investment banking support and other support necessary to
sell New MGM. This team selected Lazard Freres & Co., LLC,
(Lazard & Freres) as its investment banking firm and exclusive
financial adviser for the sale of New MGM. In early 1996, Credit
Lyonnais, through CDR, formally put New MGM up for sale to pay
off its outstanding debts. Credit Lyonnais and MGM management
hoped and expected to sell MGM for approximately $2 billion.
IV. Safari Acquisition Co.
A. Safari Consortium
In early 1996, Mark Seiler contacted Mr. Lerner about
organizing a bid for New MGM. Mr. Seiler was the U.S. president
of Capella Films, Inc., a motion picture company and a wholly
owned U.S. subsidiary of Deyhle Media Group, one of the largest
film distributors in Germany.22 Mr. Lerner introduced Mr. Seiler
to Mr. Ackerman. At some point, a consortium called the Safari
22
At the time, the five or six “major” motion picture
companies were producing virtually all the motion pictures
exhibited in the world, and this consolidation was jeopardizing
the ability of Deyhle Media Group, and other distributors, to
acquire motion picture content for distribution. Deyhle Media
Group was interested in acquiring New MGM to assure a continuous
flow of motion picture product.
- 35 -
Acquisition Co. (Safari) was formed. In an effort to secure
financing for a Safari bid, Messrs. Lerner and Ackerman met with
a Japanese company and a number of major film distributors,
including Twentieth Century Fox.
B. Safari Indicates Its Interest in New MGM
On April 17, 1996, Messrs. Ackerman and Seiler wrote a
letter to Mr. Peter R. Ezersky, managing director of Lazard
Freres, submitting Safari’s preliminary indication of interest in
acquiring New MGM. The letter stated an approximate range in
which Safari might be prepared to bid ($1.95 billion to $2.5
billion) and mentioned a number of conditions to be satisfied
before any bid would be final and effective. When this bid was
submitted, Safari had not completed its due diligence of New MGM.
In formulating its final bid, Safari hired Donaldson, Lufkin &
Jenrette Corp., as its financial adviser, and Houlihan, Lokey,
Howard, & Zukin Capital (Houlihan Lokey), as its valuation
adviser.
On April 24, 1996, Lazard Freres faxed a memorandum to
Capella Films confirming a visit to MGM on May 1 to 3, 1996, and
providing a draft list of information that was to be available
during that time in the New MGM data room. The New MGM data room
was established in MGM’s offices in Santa Monica, and each of the
“qualified” bidders was permitted to bring in a team of advisers
to investigate MGM’s company information.
- 36 -
C. Investigation of MGM
Mr. Lerner was involved in investigating New MGM. Mr.
Lerner testified that he spent nearly a week in the data room of
New MGM and talked to various members of New MGM’s corporate
management team regarding their view of the company and its
future. In the course of this investigation, Mr. Lerner received
an MGM Corporation Information Memorandum and a confidential
memorandum that Lazard Freres had prepared in connection with the
sale of New MGM. Safari hired Deloitte & Touche, LLP, and the
law firm of Kaye, Scholer, Fierman, Hays & Handler, LLP (Kaye
Scholer), to assist in investigating New MGM.
On May 14, 1996, Deloitte & Touche submitted its preliminary
data room due diligence observations to Safari. This document
explained the process and procedures followed in Deloitte &
Touche’s investigation of MGM, including its review of the
information in the New MGM data room. It also identified certain
open issues with respect to MGM.
On May 15, 1996, Kaye Scholer submitted its preliminary
memorandum to Safari summarizing its legal due diligence
investigation of New MGM. Kaye Scholer reviewed: (i) The
corporate organization of MGM, MGM’s principal subsidiaries, and
MGM Group Holdings; (ii) chain-of-title documentation for the
available portion of New MGM’s film library and other product-
related documents; and (iii) historical information for the MGM
- 37 -
and UA entities, including the more recent corporate
restructurings. The Kaye Scholer memorandum also provided a
discussion of CDR’s tax basis in MGM Holdings stock ($605
million), MGM Holdings’s tax basis in MGM Group Holdings stock
($483 million), MGM Group Holdings’s tax basis in New MGM stock
($300 million), New MGM’s tax basis in its assets ($1.14
billion), as well as tax loss carryforwards, and net operating
loss carryforwards.
A memorandum dated May 31, 1996, from Kaye Scholer to
Capella Films, which Mr. Lerner received, describes an “MGM
Acquisition/Partnership Structure” and explains:
The proposed structure outlined herein would
increase the amount receivable by CDR over a straight
purchase. Under the proposed structure CDR would
contribute the $873 million of debt owed to it by MGM
to the capital of Holdings, which in turn would
contribute the debt to Group, which in turn would
contribute the debt to MGM. Such contributions would
increase the tax basis of the stock of each of the
companies. As a result, CDR would have a tax basis in
the stock of Holdings of approximately $1.478 billion.
CDR would then form a limited liability company (the
‘LLC’) by contributing the stock of Holdings in
exchange for a 99% interest in the LLC. An unrelated
party would receive a 1% interest in exchange for a
nominal amount. Then CDR would sell half of its
interest, or 49.5% of the LLC, to an investor who could
benefit from the use of a capital loss (“Investor”).
The LLC would not make an election under section 754
* * * to adjust the basis of its assets. Group would
then sell the stock of MGM to Capella and make an
election under section 338(h)(10) of the Code to treat
the stock sale as an asset sale. Group would use a
portion of the proceeds to repay to CDR the $970
million of debt. The remainder of the proceeds would
be held by Group, other than the amount necessary to
pay any taxes on the sale (inasmuch as MGM’s NOL’s may
- 38 -
not be sufficient to offset the entire gain and some of
Group’s NOLs are subject to limitations which prevent
their use to offset MGM’s income on the deemed asset
sale). After waiting for at least one year, Investor
would buy CDR’s other 49.5% interest. Again the LLC
would not make an election under section 754 of the
Code to adjust the basis of its assets. As a result of
these transactions, Investor would own 99% of the LLC,
and Group and Holdings could be liquidated into the
LLC. The capital loss on the liquidation (which would
be approximately $1.4 billion) would be allocated to
Investor.
In June 1996, Houlihan Lokey prepared a “Pro-Forma Library
Valuation” as of August 31, 1996, valuing New MGM’s film library
at $2.6 billion, an amount greatly in excess of MGM’s capital and
debt.23 Mr. Lerner testified that it was a valuation which “we
thought was fairly good, a fairly good guess at what the assets
were worth”, but that Safari wanted to prepare its bid below this
estimate in hopes of getting a discount. Accordingly, Safari
submitted a $1.2 billion bid, which it believed was the high bid.
D. Kerkorian Moves in and Buys MGM
Safari was one of a number of bidders for New MGM. New
MGM’s management was interested in finding parties who would fund
the acquisition of New MGM and retain existing management. New
MGM’s management met with Messrs. Lerner and Ackerman to discuss
the possibility of doing a transaction with the management group.
New MGM’s management, however, decided against it; they lacked
23
Mr. Lerner testified that this valuation did not take
into account corporate taxes, overhead, and remake rights of
several important pictures such as the “James Bond”, “Pink
Panther”, and “Rocky” movies.
- 39 -
confidence in Messrs. Lerner’s and Ackerman’s capital sources and
were not comfortable that their proposed financing from Japan was
going to materialize.
Unbeknownst to Safari, New MGM’s management had the right,
after all the final bids were in, to find another buyer within a
certain number of hours. After all bids were submitted, New
MGM’s management approached Kirk Kerkorian who, through his
company, P&F Acquisition Corp. (P&F Acquisition), successfully
bid $1.3 billion for New MGM. Safari was not given an
opportunity to rebid; it lost out on its attempt to buy New MGM.
On July 16, 1996, P&F Acquisition entered into a stock
purchase agreement (the stock purchase agreement) with CDR, MGM
Holdings, MGM Group Holdings, and New MGM. The stock purchase
agreement provided that all of New MGM’s and its subsidiaries’
indebtedness would be repaid in full upon the consummation of the
sale and that any New MGM indebtedness remaining unpaid would be
satisfied, canceled, or extinguished at or before the closing on
the sale. The closing date was set as of October 10, 1996.
E. Debt Release and Assumption Agreement
As of October 9, 1996, New MGM owed Credit Lyonnais
$378,748,588.93 under the working capital agreement. The $1.3
billion purchase price that P&F Acquisition paid for New MGM
sufficed to pay off all of New MGM’s creditors except Credit
- 40 -
Lyonnais.24 Because the debt that New MGM owed Credit Lyonnais
($378,748,588.93) exceeded the New MGM sale proceeds that Credit
Lyonnais was to receive ($298,835,633.58), New MGM still owed
Credit Lyonnais $79,912,955.34. On October 9, 1996, Credit
Lyonnais, MGM Group Holdings, and New MGM executed a debt release
and assumption agreement releasing New MGM from its obligations
on the remaining $79,912,955.34 of principal owed to Credit
Lyonnais under the working capital agreement and providing that
MGM Group Holdings assumed this remaining $79,912,955.34 of
indebtedness (the $79 million receivable). MGM Group Holdings
(and its successor SMHC) never executed a note for the
$79,912,955.34 of indebtedness referred to in the debt release
and assumption agreement.
F. Subparticipation Agreement
On September 25, 1996, CDR and Credit Lyonnais entered into
a subparticipation agreement concerning the working capital
agreement. Under this agreement, CDR agreed to take a 100-
percent subparticipation in the working capital agreement,
assuming all risks connected to that loan.
On October 11, 1996, Credit Lyonnais sent a letter to CDR
referencing the $79,912,955.34 excess debt from the New MGM sale
and stating: “Pursuant to your agreement of October 1, 1996, we
24
Generale Bank (CLBN’s successor) was to be paid
$611,064,366.42 (which included accrued interest) for the amounts
that New MGM owed under the CLBN term loan.
- 41 -
have resolved and settled this insufficient payment by utilizing
your subparticipation to meet the amount owed.” On December 13,
1996, CDR assigned the $79 million receivable to CLIS, effective
as of that date, pursuant to a document entitled “Cession de
Creance”.
G. Dissolution of MGM Holdings and Formation of SMHC
On or about September 28, 1996, MGM Holdings contributed its
Carolco preferred stock and Carolco subordinated notes to MGM
Group Holdings. On October 8, 1996, MGM Holdings was dissolved;
its assets were distributed to CLIS, MGM Holdings’s sole
shareholder. On October 15, 1996, MGM Group Holdings changed its
corporate name to Santa Monica Holdings Corp. (SMHC).
V. The CDR Transaction
A. Initial Contact With Mr. Jouannet
After agreement was reached on the sale of New MGM, one of
Mr. Jouannet’s continuing jobs at CDR was to see what, if
anything, he could realize on the stock of MGM Group Holdings.
CDR and Mr. Jouannet were interested in “monetizing” MGM Group
Holdings as soon as possible.
Sometime before September 11, 1996, Mr. Lerner, on behalf of
Rockport Capital, and Mr. Jouannet, on behalf of CDR, discussed a
possible transaction involving MGM Holdings and MGM Group
Holdings. The Ackerman group hired a French firm (unnamed in the
record) and the law firm of Shearman & Sterling, LLP (Shearman &
- 42 -
Sterling), in New York City, to assist in the proposed
transaction with CDR.
Mr. Lerner testified that “When our conversation began with
Rene Claude [Jouannet] about acquiring MGM Holdings, I already
knew from the due diligence exercise before that there were, I
would say, complex tax issues arising from the acquisition of
that company”, including tax basis and NOL issues. He testified
that he asked Shearman & Sterling to give him “an analysis of the
ways in which a transaction could be organized involving MGM
Holdings so that any tax attributes that might have existed could
be preserved.” Shearman & Sterling prepared two memoranda
summarizing the anticipated U.S. tax consequences of certain
hypothetical transactions involving MGM Holdings.
On November 1, 1996, Alvin D. Knott of Shearman & Sterling
sent a letter to William Wofford, an associate at White & Case,
requesting documentation of obligations that MGM Group Holdings
owed; balance sheets and income statements of MGM Group Holdings,
MGM, and Generale Bank; documentation of the loans from CLBN to
Pathe; documentation of the transactions in which MGM Group
Holdings acquired Sealion’s 1.5-percent interest in MGM Group
Holdings; and documentation of the liquidation of MGM Holdings.
On November 6 and 8, 1996, Mr. Wofford sent two letters to Mr.
Knott providing the requested information and documentation. On
December 3, 1996, Mr. Knott sent a letter to Mr. Lerner enclosing
- 43 -
these letters and summarizing the information and documentation
received. On December 6, 1996, Mr. Wofford faxed to Mr. Lerner’s
representative, James M. Rhodes: (i) The debt release and
assumption agreement dated as of October 9, 1996, by and among
MGM Group Holdings, MGM, and Credit Lyonnais; and (ii) the
certificate of amendment of MGM Group Holdings, changing its name
to SMHC.
B. Negotiation and Drafting Process
At some point, Mr. Lerner, on behalf of Rockport Capital,
and Mr. Jouannet, on behalf of CDR, decided to move forward with
a transaction involving MGM Group Holdings. Negotiations
concerning this proposed transaction continued throughout October
and November 1996. The law firm of White & Case, LLP,
represented the interests of CDR during the course of the
negotiation, drafting, and agreement process with the Ackerman
group. Sean Geary was the lead attorney in White & Case’s
representation of CDR.
1. Rockport Capital Confirms Its Interest
On September 11, 1996, Mr. Lerner sent a letter to Mr.
Geary, as counsel for CDR, confirming “the interest of Rockport
Capital * * * in MGM Holdings, Inc. * * * and the U.S. tax
attributes which may relate to the direct and indirect
investments by Credit Lyonnais, S.A., and * * * [CDR] in Metro-
- 44 -
Goldwyn-Mayer, Inc.” The letter agreement did not mention any
films or film business.
2. Draft Term Sheet and Letter Agreements
On October 16, 1996, at Mr. Lerner’s request, Shearman &
Sterling sent Mr. Geary a “Draft Term Sheet” proposing a
transaction with Generale Bank concerning MGM Group Holdings.
The draft term sheet contained a section entitled “Initial
Transactions”, providing:
Generale Banque acquires all the stock of MGM Group
Holdings (“Group”) and subsequently contributes
obligations owed to it by Group in the approximate
amount of $1.050 billion (collectively, the “Note”) to
the capital of Group.
The draft term sheet proposed an alternative transaction whereby:
if CLIS’s current basis in Group stock is significant,
in lieu of the transactions described in the term
sheet: (a) CLIS will contribute all of the stock of
Group to Newco in exchange for Preferred Interests, (b)
Generale Banque will contribute the Note to Newco in
exchange for Preferred Interests, and (c) Newco will
contribute the Note to Group.
The draft term sheet also contained a section entitled
“Transaction Structure”, providing:
Step 1: Rockport Capital, Inc., and its associates
(the “Initial Members”) form a Delaware limited
liability company (“Newco”), and contribute assets
(cash and securities) to Newco in an agreed amount to
enhance and monetize the value of the Preferred
Interests to be issued in Step 2.
Step 2: Generale Banque contributes all of the stock
of Group to Newco in exchange for preferred membership
interests in Newco (“Preferred Interests”).
- 45 -
The draft term sheet contained a section called “Terms of
Preferred Interests”, which provided:
The Preferred Interests will have a liquidation value
equal to $ million, will have a 6% per annum
dividend preference, and will be convertible after 5
years into 51% of Newco’s common membership interests,
provided that if the conversion right is exercised,
Newco may redeem all of the Preferred Interests at
their liquidation value plus accrued and unpaid
dividends. The conversion right will be accelerated in
the event Newco fails to make a dividend payment when
due on the Preferred Interests, and in other pertinent
circumstances.
In addition to these items, the draft term sheet contained a
section entitled “Conditions”, which, among other things,
required Generale Bank to give satisfactory representations and
warranties to Newco and Rockport Capital as to the original
amount of the loans evidenced by its “Note”, the amount
outstanding under those loans at the time of the contribution of
the note to Newco, and the fact that MGM Group Holdings and
Generale Bank continuously recorded the note as debt from the
date of its creation through the date of contribution. It also
provided that Rockport Capital (and its associates) would decide
whether Newco should be structured as a partnership or a
corporation for Federal income tax purposes. The draft term
sheet did not mention any films or film business.
On October 21, 1996, at the request of Mr. Lerner, Shearman
& Sterling sent Mr. Geary a memorandum entitled “Draft Letter
Agreement” discussing the alternative transaction alluded to in
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the draft term sheet and refining the terms and provisions in the
draft term sheet. The memorandum stated that the letter
agreement “would require Generale Bank and CLIS simply to
transfer their respective assets to a Newco in exchange for
preferred interests which will be monetized.”25 Rockport Capital
would form a Delaware limited liability company (“Newco”) and
contribute assets (cash and securities) to Newco in an amount
mutually agreed by Rockport, CLIS, and Generale Bank, in exchange
for all the common interests in Newco; CLIS would contribute all
the stock of MGM Group Holdings to Newco in exchange for
preferred membership interests in Newco; and Generale Bank would
contribute to Newco, in exchange for preferred membership
interests, some $1.050 billion of obligations that MGM Group
Holdings owed to Generale Bank. Regarding documentation, the
first draft letter agreement provided:
3. Documentation. The Transactions will be
documented in the form of an Exchange and Contribution
Agreement * * * among Newco, CLIS and * * * [Generale
Bank] which will contain customary representations,
warranties and indemnification provisions, including,
without limitation, (i) representations and warranties
by CLIS concerning Group’s assets and the absence of
any undisclosed liabilities, (ii) representations and
warranties by CLIS as to its basis in the stock of
Group, (iii) representations and warranties by * * *
[Generale Bank] as to the original amount of the loans
25
Mr. Geary explained that “by this time [the time of the
draft letter agreement] clearly there was going to be a second
letter, a put letter. That’s what I understood to be monetized.
There was a put available. We didn’t have to wait, you know, for
the time of the deal.”
- 47 -
evidenced by the Note [MGM Group Holdings’ debt
obligations of $1.05 billion], the amount outstanding
under such loans at the time of the contribution of the
Note to Newco, and the fact that * * * [Generale Bank]
and Group continuously recorded the Note as debt from
the date of creation through the date of contribution,
and (iv) provisions providing for the indemnification
by CLIS and * * * [Generale Bank] of Newco, the Initial
Members and their affiliates and agents against
breaches of any of the foregoing representations or
warranties.
At some point, White & Case took control of drafting the
letter agreement. Mr. Geary tried to produce something that
reflected his discussions with Mr. Jouannet. Mr. Geary
incorporated into the drafting process a side letter agreement
giving Generale Bank and CLIS the right to put their preferred
interests in Newco (later SMP) to Rockport Advisors (or its
affiliate). The put could be exercised “no earlier than December
31, 1996 and no later than December 31, 1997 upon two days
written notice from a Seller to Purchaser directing that the Put
be effected.” The side letter agreement proposed a $6 million
purchase price for the preferred interests and an advisory fee
consisting of $4 million plus an amount (not to exceed $2
million) equal to three-quarters of 1 percent of the tax losses,
if any, in excess of $1 billion that would have been allocated to
all members of Newco (other than Generale Bank, CLIS, Rockport
Advisors, CDR, or their affiliates) upon consummation of the
various transactions. The $6 million purchase price and the
advisory fee were to be deposited in a blocked account with a
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bank designated by CDR.26 On November 21, 1996, after exchanging
numerous drafts of the letter agreement and the side letter
agreement, the parties reached a basic agreement. No draft of
the letter agreement or side letter agreement mentioned any films
or film business.
3. Further Negotiation and Drafting
Although the parties had reached basic agreement on the
terms of the proposed transaction, including the put in favor of
Generale Bank and CLIS, the transaction did not close at this
point. The parties proposed supplementary terms to the letter
agreement and to the side letter agreement, as well as several
revisions to the terms of the side letter agreement. These
proposals primarily concerned the Carolco securities--CDR wanted
to retain the benefit of whatever value might be realized on
those securities. To this end, the parties added a contingent
amount to the put price that would be tied to any recovery on the
Carolco securities and also provided certain preferred
distribution rights tied to any proceeds realized on a
liquidation of Carolco. In addition, the parties agreed that
Rockport Capital (instead of Rockport Advisors) and Mr. Lerner
would be the initial members of a limited liability company (that
would later become SMP), which would be structured as a
26
Over the course of the drafting process, the parties
agreed to a $5 million put price and a $5 million advisory fee.
- 49 -
partnership for Federal tax purposes and would be formed with an
aggregate contribution of $20 million. After further
negotiations on the terms of the transaction, the attorneys for
both sides began distilling those terms into an exchange and
contribution agreement, a limited liability company agreement, a
deposit account agreement, and an advisory fee agreement.
4. Santa Monica Pictures, LLC, Is Formed
On December 6, 1996, SMP filed its certificate of limited
liability company. On or about December 10, 1996, SMP applied
for registration with the State of California for the purpose of
registering to transact intrastate business in California.
C. Final Agreements and Documents
On December 11, 1996, the parties finalized the agreements
that they had negotiated over the course of several months.
1. Side Letter Agreement
On December 11, 1996, Rockport Capital, CDR, Generale Bank,
and CLIS executed a side letter agreement pursuant to which
Rockport Capital irrevocably agreed to purchase, upon written or
facsimile notice, all the preferred interests of Generale Bank
and CLIS in SMP for a specified purchase price. Under the side
letter agreement, CLIS and Generale Bank could exercise the put
by giving written or facsimile notice during the period
- 50 -
commencing on December 31, 1996, and ending December 31, 1997.27
The purchase price for the preferred interests consisted of
a “Cash Purchase Price” and a “Contingent Amount”. The Cash
Purchase Price was defined as the amount of CLIS’s and Generale
Bank’s initial preferred capital accounts in SMP ($5 million)
plus interest as of the purchase date. The Contingent Amount was
defined as: (i) The lesser of $7 million or the amount recovered
on the Carolco subordinated notes; plus (ii) the lesser of $3
million or the amount recovered on the Carolco preferred stock.
By its terms, the side letter agreement was not effective
until: (i) Each of the parties signed a counterpart of the side
letter agreement and received a full set of signed counterparts;
and (ii) Rockport deposited $5 million (i.e., the sum of the
preferred capital accounts of CLIS and Generale Bank on the
closing date of the exchange and contribution agreement) in an
account maintained at Chase Manhattan Bank. The side letter
agreement also provided that CLIS and Generale Bank had no
obligation to make the contributions provided for in the exchange
and contribution agreement unless and until the side letter
agreement became effective.
27
Any written or facsimile notice was required to have an
attached instrument of assignment, a copy of which was attached
as “Exhibit A” to the put agreement. Exhibit A provided that any
assignment and transfer of the preferred interests to Rockport
Capital was to be effective upon payment to the seller of the
cash purchase price provided in the put agreement.
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2. Exchange and Contribution Agreement
On December 11, 1996, SMP, CDR, CLIS, Generale Bank, and
Rockport Capital entered into an exchange and contribution
agreement (the exchange and contribution). Under this agreement,
CLIS and Generale Bank agreed to contribute assets to SMP in
exchange for preferred membership interests in SMP. According to
the exchange and contribution agreement, CLIS was to contribute
its SMHC stock and the $79 million receivable.28 Generale Bank
was to contribute $974 million in receivables. Schedule 1 of the
exchange and contribution agreement described the $79 million
receivable and the $974 million in receivables as follows:
Holdings-CLIS Debt
$79,912,955.34 principal amount of indebtedness,
outstanding under the MGM Working Capital Credit
Agreement dated as of December 30, 1993 between Metro-
Goldwyn-Mayer Inc. (“MGM”) and Credit Lyonnais SA.
originally owing by MGM and assumed by Santa Monica
Holdings Corporation (then known as MGM Group Holdings
Corporation and herein “Holdings”) on October 9, 1996,
together with all accrued interest thereon.
Holdings-GB Debt
Indebtedness owing by Holdings to Generale Bank
Nederland (formerly known as Credit Lyonnais Bank
Netherlands) for borrowed money aggregating no less
than $974,296,600.85, together with all accrued
interests thereon, including that indebtedness
evidenced by a promissory note dated December 30, 1993
in the principal amount of $965,904,188.96 and by a
promissory note dated October 26, 1994. * * *
28
As previously noted, on Oct. 15, 1996, MGM Group Holdings
had changed its name to Santa Monica Holdings Corp. (SMHC).
- 52 -
CDR and CLIS represented and warranted: (1) SMHC had an
authorized capitalization consisting of 200 million shares of
capital stock, of which 60 million shares of common stock, par
value $1.00 per share, were issued and outstanding; (2) the
aggregate amount of capital CLIS contributed to MGM Holdings from
the date of the creation thereof to the date of MGM Holdings’s
liquidation equaled approximately $605 million; and (3) CLIS had
received no payment of principal on the $79 million receivable
and had not written down any of the debt for accounting or tax
purposes. Generale Bank also represented and warranted that it
had received no payment of principal on the $974 million in
receivables and had not written down the loans for accounting or
tax purposes. CDR retained control of SMHC’s tax return filing
obligations for all taxable years or other taxable periods ending
on or before December 31, 1996.
On December 12, 1996, White & Case faxed to Mr. Lerner and
his associates Schedules 1.6(b) and (c) to the exchange and
contribution agreement and a revised deposit account agreement.
Schedule 1.6(b) lists the “U.S. Video Film Rights” to 65 films
(identified by title only), the rights to 26 development
projects, and the rights to the Carolco preferred stock and
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$33,111,856.98 aggregate principal amount of the Carolco
subordinated notes.29
3. SMP LLC Agreement
On December 10, 1996, Rockport Capital and Mr. Lerner formed
SMP pursuant to a limited liability company agreement (the SMP
LLC agreement). The SMP LLC agreement indicated that among the
purposes for which SMP was formed was “to produce and distribute
filmed entertainment products and to own interests in entities
engaged in such activities”.
The SMP LLC agreement provided that the members of SMP would
have the following membership interests:
Common Preferred
Common Preferred capital capital
interest interest account account
Rockport 50% 50% $50,000 $50,000
Lerner 50 50 50,000 50,000
The agreement provided for 3 types of interests--Common I, Common
II, and Preferred. Members holding Common I interests had
exclusive voting rights in SMP. Members holding preferred
interests had no voting rights; however, they had the right to
convert all their preferred interests into Common II interests on
29
The exchange and contribution agreement (including its
attached schedules) did not define the term “U.S. Video Film
Rights”.
- 54 -
or after December 10, 2001.30 Members holding Common II
interests also had no voting rights in SMP.
Under the SMP LLC agreement, if the members holding
preferred interests exercised their conversion rights, SMP had
the right to redeem all the preferred interests at a price equal
to the sum of the preferred capital accounts for all holders of
preferred interests. SMP also had the option to convert the
preferred interests into debt of SMP beginning on December 31,
1997, and on conversion, the debt would have a principal amount
equal to $5 million for a term of 5 years at an interest rate of
8 percent per annum.
Mr. Lerner was appointed SMP’s manager. The SMP LLC
agreement provided that no member could sell, assign, transfer or
dispose of, directly or indirectly, by operation of law or
otherwise (including by merger, consolidation, dividend, or
distribution) any membership interest, without the prior written
consent of SMP’s manager. It also provided that no member could
retire or withdraw from SMP without SMP’s manager’s written
consent except in certain defined circumstances.
Pursuant to the SMP LLC agreement, with certain exceptions,
each SMP member (including any additional members) agreed that it
30
Members holding preferred interests could immediately
convert their preferred interests to Common II interests if
certain required annual distributions of excess cashflow were not
made.
- 55 -
would not, and would not cause any of its affiliates to, at any
time, reveal to any other person or use in any way detrimental to
SMP any nonpublic, confidential, or proprietary information
relating to the business and affairs of SMP that was acquired or
otherwise received by such person in connection with the
transactions contemplated in the LLC agreement.
a. Amendment No. 1
Mr. Lerner and Rockport Capital executed an amendment
(“Amendment No. 1”) to the SMP LLC agreement dated as of December
11, 1996, which admitted CLIS and Generale Bank as new members of
SMP. Amendment No. 1 recited that CLIS would contribute its SMHC
stock and the $79 million receivable to SMP, and Generale Bank
would contribute $974,296,600.85 of principal indebtedness owing
by SMHC, in exchange for preferred interests in SMP.31 CLIS and
Generale Bank executed ratification certificates agreeing to all
the terms of the SMP LLC agreement as amended by Amendment No. 1.
b. Amendment No. 2
Mr. Lerner, as manager of SMP and as a director of Rockport
Capital, executed a second amendment (“Amendment No. 2”) to the
SMP LLC agreement dated as of December 11, 1996, admitting
Somerville S Trust as a member of SMP. Amendment No. 2 required
31
From this point forward, the documents in the record
(including the relevant tax returns) refer to $974,296,600.85 in
indebtedness owing by SMHC. Previous documents alluded to a
principal debt of $975,494,909.84. For our purposes, we refer to
the $974 million in receivables from Generale Bank.
- 56 -
Somerville S Trust to contribute $19.8 million in cash to SMP in
exchange for a 99.5-percent common interest in SMP (to be held as
a Common I interest).
Mr. Lerner, as trustee of Somerville S Trust, executed a
document entitled “Assignment” dated December 10, 1996, in which
Somerville S Trust contributed $19.8 million in cash and
marketable securities to SMP.32
The members of SMP had the following membership interests in
SMP after December 11, 1996:
Common Preferred
Common Preferred capital capital
interest1 interest2 account account
CLIS 0% 36.76% $0 $1,875,000
Generale Bank 0 61.27 0 3,125,000
Somerville 99.50 0 19,800,000 0
Rockport 2.25 0.85 50,000 50,000
Lerner 2.25 0.85 50,000 50,000
1
The common membership interests in SMP do not add up to
100 percent.
2
The preferred membership interests in SMP do not add up to
100 percent.
32
Amendment No. 2 indicated that the $19.8 million in cash
and marketable securities would be held by Somerville S Trust
“for the sole and exclusive benefit of the LLC and that said
amount shall heretofore be deemed assigned to and owned by the
LLC.” It also indicated that on or before Dec. 31, 1997, this
amount plus interest would be paid to an account established in
the name of SMP.
- 57 -
4. Deposit Account Agreement
On December 11, 1996, Rockport, CDR, and Chase Manhattan
Bank entered into a deposit account agreement (the deposit
account agreement) pursuant to which Rockport agreed to place $5
million in a blocked account to be paid to Generale Bank and CLIS
upon the exercise of the put under the side letter agreement.
Pursuant to the deposit agreement, upon notice from CDR directing
a distribution to be made, Chase Manhattan Bank was irrevocably
directed to distribute the amount specified in the notice.
Rockport Capital irrevocably agreed that no amount on deposit in
the deposit account could be distributed at the direction of
Rockport Capital. The deposit agreement provided that on January
2, 1998, the bank would withdraw and pay to Rockport Capital all
funds then on deposit, if no withdrawal had been made by then.
5. Advisory Fee Agreement
On December 11, 1996, Rockport Capital executed a letter
(the advisory fee agreement) agreeing to pay CLIS an advisory fee
of $5 million and an additional advisory fee equal to three-
quarters of 1 percent of the tax losses, if any, in excess of $1
billion that would be allocated to all members of SMP other than
Generale Bank, CLIS, Rockport, or their affiliates as of the
exchange and contribution agreement closing date. In the
advisory fee agreement, Rockport agreed that “notwithstanding any
provision of the * * * [letter agreement] to the contrary, the
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Effective Date will not occur unless Rockport has made the
payment, if any, required by the preceding paragraph.”
6. Consent
Prior to becoming members of SMP, CLIS and Generale Bank
required Mr. Lerner, as manager of SMP, to execute a document
(the consent) to provide advance consent to transfer CLIS’s and
Generale Bank’s preferred interests and to withdraw from SMP.33
White & Case drafted the consent on behalf of CLIS and Generale
Bank and dated it “___________, 1996”.34
Prior to CLIS’s and Generale Bank’s becoming members of
SMP, Mr. Lerner, as manager of SMP, signed the consent agreeing
to CLIS’s and Generale Bank’s transfer of preferred interests in
SMP and withdrawal as members of SMP.
D. Assignment to Santa Monica Finance, B.V.
On December 23, 1996, Mr. Geary sent Mr. Lerner: (i) A
facsimile of an instrument assigning Generale Bank’s 61.27-
percent preferred interest in SMP to Santa Monica Finance, B.V.;
and (ii) an executed ratification certificate from the latter
entity.
33
CLIS and Generale Bank planned to transfer the preferred
interests to a CDR affiliate, Santa Monica Finance B.V., before
the put under the side letter agreement was exercised.
34
Mr. Lerner executed two other consents for the transfer
of preferred interests and the withdrawal of an unnamed “Member”
of SMP. These consents were also predated “ , 1996”.
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E. Exercise of the Put
On December 26, 1996, Mr. Geary, pursuant to the
instructions of Mr. Jouannet, sent facsimiles to William Ponce,
Gary Mazzola, and Celia Murphy at Chase Manhattan Bank, and to
Mr. Lerner, transmitting notices from CLIS and Santa Monica
Finance, B.V., exercising their rights under the side letter
agreement and the deposit account agreement.35 The $5 million
that Somerville S Trust had deposited with Chase Manhattan Bank
was duly paid to CLIS and Generale Bank. Per an informal
agreement between Rockport Capital and Somerville S Trust,
Somerville S Trust became the purchaser and owner of the
preferred interests.
VI. Film Rights Contributed to SMHC
A. Film Titles and Development Projects
The following film titles and development projects were
listed in Schedule 1.6(b) of the exchange and contribution
agreement as assets of SMHC:
U.S. Video Film Rights
1. Alley Cat 7. Battle of the Valiant
2. Astro Zombies 8. Beast, The
3. Auditions 9. Blood Brothers
4. Avenger 10. Blood Castle
5. Banana Monster 11. Cardiac Arrest
6. Battle of the Last Panzer 12. Carthage in Flames
35
Mr. Geary exercised Generale Bank’s and CLIS’s rights
under the side letter agreement and deposit account agreement on
Dec. 26, 1996; however, the put period did not commence until
Dec. 31, 1996.
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13. Cold Steel for Tortuga 41. Octavia
14. Conqueror and the Empress 42. Platypus Cove
15. Crimson 43. Summer Camp Nightmare
16. Demoniac 44. Bombay Talkie
17. Duel of Champions 45. Courtesans of Bombay
18. Equinox 46. Hullabaloo over Georgia
19. Erotkill 47. Shakespeare Wallah
20. Escape from Hell 48. Nasty Hero
21. Escape from Venice 49. To Love Again
22. Fear 50. Sticks and Stones
23. Fist of Fear, Touch of 51. This Time I’ll Make You
Death Rich
24. Fraulein Devil 52. Danger Zone
25. Headless Eyes 53. Hunter’s Blood
26. Invincible Gladiators 54. Sidewinder One
27. Invisible Dead 55. Firefight
28. Jungle Master 56. House of Terror
29. Oasis of Zombies 57. Ninja Hunt
30. Return of the Conqueror 58. Ninja Showdown
31. Return of the Zombies 59. Ninja Squad
32. SS Camp 5 60. Outlaw Force
33. SS Experimental Love Camp 61. Plutonium Baby
34. The Sword & The Cross 62. Terror on Alcatraz
35. Throne of Vengeance 63. The Visitants
36. Tiger of the Seven Seas 64. War Cat
37. Tormentor 65. White Ghost
38. White Slave
39. Zombie
40. Mother & Daughter: Loving
War
Development Projects
1. Atlantis 14. Karma Sutra
2. Captain’s Daughter 15. “M”
3. Child Prostitution 16. Marriage License
4. Detroit Boogie 17. Nobody’s Boy
5. Deadly Vision 18. Pied Piper
6. Dubrovsky 19. Price of Passion
7. Shining City 20. Prince and the Pauper
8. $1.98 Man 21. Princess and the Pea
9. Ballhouse Jam 22. Scorched Season
10. Cinderella 23. Snow Queen
11. Golden Goose 24. Strike on Babylon
12. Goldilocks & 3 Bears 25. Tom Sawyer
13. Jack & the Bean Stalk 26. Treasure Island
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B. History of the EBD Film Library
1. Epic Productions
In the late 1980s, through some intermediate steps of
ownership, Credit Lyonnais created Epic Pictures Enterprises
(Epic Pictures) and Epic Productions, Inc. (Epic Productions).
Epic Pictures was created in 1987 or 1988 to take possession of
and manage certain motion picture assets. Epic Productions took
possession of the stock of Epic Pictures and managed that company
after it was created. In 1992, Credit Lyonnais lost confidence
in the existing management of Epic Productions and hired John
Peters to replace that management and serve as its CEO.36 Mr.
Peters worked as Epic Productions’ CEO from 1992 until July 1998.
In late 1993 or early 1994, Credit Lyonnais began acquiring
other entertainment assets, particularly film libraries, from
companies to which Credit Lyonnais had lent money. (When loans
from Credit Lyonnais became distressed, Credit Lyonnais would
acquire the film assets in workouts, bankruptcies, or other
proceedings.) To take possession of, or title to, these film
assets, Credit Lyonnais created approximately six companies,
including Alpha Library Co., Inc. (Alpha) and Epsilon Library
Co., Inc. (Epsilon). After Credit Lyonnais acquired these film
36
As chief executive officer (CEO) at Epic Productions,
John Peters had frequent contact with individuals associated with
Credit Lyonnais, including Hank de Kaiser in Rotterdam, Mr.
Jouannet and Michelle la Brund in Paris, and Bruno Hurstel, who
was a director on Epic Productions’ board.
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assets, it turned them over to Epic Productions to manage. As a
result, Epic Productions eventually was managing over 1,000 films
(the CDR library).
Credit Lyonnais’s overall goal was to liquidate the film
assets that it acquired rather than to simply consolidate these
assets and pursue business in the entertainment realm. By late
1995, Credit Lyonnais instructed Epic Productions to begin
planning the liquidation of the CDR library; this became the
focus of Epic Productions’ business operations.
2. EBD (Rotterdam) Finance, B.V.
On December 18, 1995, CDR incorporated EBD (Rotterdam)
Finance, B.V. (EBD), as a special-purpose entity to take over the
so-called EBD film-related portfolio which was excluded from the
sale of CLBN to Generale Bank.37
3. Selection of Film Titles for CDR
In 1996, during Epic Productions’ efforts to sell the CDR
library, someone at either Credit Lyonnais or EBD contacted Mr.
Peters and instructed him to find some low-value films and
development projects within the CDR library.38 Mr. Peters
37
The record is unclear on the precise role that EBD played
vis-a-vis Epic Productions, although it appears that EBD was in
some respect higher on the Credit Lyonnais/CDR chain than Epic
Productions.
38
Mr. Peters testified that the individual who contacted
him from Credit Lyonnais or EBD was likely Hank de Kaiser, Mr.
Jouannet, Bruno Hurstel, or Michelle la Brund.
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selected the “U.S. Video Film Rights” to the 65 film titles and
the rights to the 26 development projects that were listed in
Schedule 1.6(b) of the exchange and contribution agreement.
4. Assignments Before the Contributions to SMHC
As described below, a number of documents were executed
providing for transfers and assignments of the 65 film titles and
26 development projects that Mr. Peters had selected.
According to a document entitled “Assignment” dated as of
December 10, 1996, Alpha assigned and transferred to CLIS:
(i) The “U.S. Video Film Rights” to 15 film titles; and (ii)
eight development projects for “$0.25 and other good and valuable
consideration.”39 According to this document, Alpha made no
express or implied warranties or representations with respect to
these assets.
According to a second document entitled “Assignment” dated
as of December 10, 1996, Epsilon assigned and transferred to CLIS
18 development projects for “$0.25 and other good and valuable
consideration.” According to this document, Epsilon made no
express or implied warranties or representations with respect to
these assets.
According to a third document entitled “Assignment” dated as
of December 10, 1996, EBD assigned and transferred to CLIS the
39
The assignment, including its attached schedule, did not
define the term “U.S. Video Film Rights”; it identified the films
only by titles.
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“U.S. Video Film Rights” to 50 film titles for “$0.50 and other
good and valuable consideration.”40 According to this document,
EBD made no express or implied warranties or representations with
respect to these assets.
According to a fourth document entitled “Assignment”, dated
as of December 10, 1996, EBD, on behalf of itself and its
subsidiaries, Alpha, Epsilon, and Epic Pictures (collectively
“the EBD group”), assigned and transferred to CLIS the “U.S.
Video Film Rights” to 65 film titles (the EBD film rights) and 26
development projects (collectively “the EBD film library”) for
“$1 and other good and valuable consideration”.41
According to a fifth document entitled “Resolutions of
Credit Lyonnais International Services”, effective December 10,
1996, CLIS assigned, transferred, and contributed all its rights
and interests in the EBD film library to the capital of SMHC.
5. Storage Conditions of the EBD Film Library
In 1996, many of the films in the EBD film library were
stored at “the Epic warehouse”, which Epic Productions owned.
The Epic warehouse was a metal shell building, about 30,000
square feet, located near the airport in Burbank, California,
40
The assignment, including its attached schedule, did not
define the term “U.S. Video Film Rights”; it identified the films
only by titles.
41
The assignment, including its attached schedule, did not
define the term “U.S. Video Film Rights”; it identified the films
only by titles.
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about 5 or 6 miles from Epic Productions’ offices. At this
location, film materials were stored on metal racks along with
other materials, including reels of film, posters, publicity
materials, cardboard cassette boxes, cassette inventory, old
files, an ambulance, and an old Cadillac convertible. Unlike
regular film laboratories and facilities, the Epic warehouse was
not a temperature- and humidity-controlled facility; it was not
bonded; and it did not have good inventory control.
At one time, Epic Productions had a full-time employee who
supervised and provided security at the Epic warehouse; however,
as of sometime before 1996, Epic Productions had no supervision
or security at the Epic warehouse. For this and other reasons,
Epic Productions stored no film materials in the Epic warehouse
that it regarded as highly valuable or irreplaceable. If Epic
Productions had master film material for valuable films, it
stored them in secure laboratories with temperature and humidity
controls.
VII. Due Diligence for the CDR Transaction
A. James Rhodes
Sometime in 1996, Mr. Lerner hired an attorney, James
Rhodes, to assist with some of the due diligence on the
“corporate side” for the transaction between Rockport Capital and
CDR. Mr. Rhodes continued his work into 1997, tying up loose
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ends and following up with White & Case and Mr. Jouannet to
complete the Ackerman group’s files.
On December 11, 1996, Mr. Rhodes faxed to Mr. Wofford at
White & Case a revised draft of a “Basis Chronology”, which
contained an analysis of the bases of all the assets involved in
the transaction between Rockport Capital and CDR. The basis
chronology included a section analyzing the basis of the MGM
Group Holdings stock, and it listed three transactions affecting
the basis of MGM Group Holdings’ stock: (i) MGM Holdings’s
purchase of 98.5 percent of MGM Group Holdings stock in the 1992
foreclosure sale for $483,489,000; (ii) Credit Lyonnais’s
acquisition of Sealion’s 1.5-percent stock interest in MGM Group
Holdings that had been pledged to Credit Lyonnais as security for
a $150 million loan to Sealion; and (iii) MGM Holdings’s
contribution of Carolco securities in the face amount of $60
million to MGM Group Holdings on September 28, 1996.
On May 12, 1997, Mr. Wofford sent a facsimile cover sheet to
Mr. Rhodes which stated:
This letter is to confirm that, to our knowledge,
none of Credit Lyonnais International Services
(“CLIS”), Generale Bank Nederland (“GB”), or any
affiliate of Credit Lyonnais S.A. or Consortium de
Realisation (“CDR”) derived any U.S. tax benefit from
the contribution of the stock of Santa Monica Holdings
Corporation or the Holdings - CLIS Debt (as defined in
the Exchange and Contribution Agreement (the
“Agreement”) by and among Santa Monica Pictures, L.L.C.
(the “Company”), CDR, CLIS, GB and Rockport Capital
Incorporated, dated as of December 11, 1996) pursuant
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to the Agreement or the subsequent disposition by CLIS
and GB of interests in the Company.
B. Troy & Gould
In June 1997, Mr. Lerner engaged the law firm of Troy &
Gould, P.C., in Los Angeles, California, to perform due diligence
on the EBD film library. Two highly regarded entertainment
lawyers at Troy & Gould, Gary Concoff and Jonathan Handel,
conducted the due diligence. Before engaging Troy & Gould, Mr.
Lerner received no documentation tracing the chain of title for
the EBD film rights.
1. Chain-of-Title and Record Search
Troy & Gould contacted individuals at certain law firms and
at various entities (principally Epic Productions) that were
believed to have held interests in the EBD film library. On
December 9, 1997, Mr. Handel sent Mr. Lerner a memorandum
containing Troy & Gould’s conclusions regarding the nature of the
rights that SMHC acquired in the EBD film library. The
memorandum summarizes its conclusions as follows:
The documentation is too fragmentary to draw
conclusions with any semblance of confidence. As a
matter of general characterization, it would seem that
Santa Monica Holdings is intended to have acquired
domestic video rights for a term of years to the
subject pictures and all rights to the subject
development projects. The domestic rights appear to
include Canada as to some but not all pictures. The
term of the rights varies from picture to picture.
Again, the foregoing characterization is subject to the
caveat that we have no documentation whatsoever on most
of the subject pictures and projects, and the
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documentation we do have is incomplete. In addition,
there are outright gaps in the chain of title as to
groups of pictures; that is, certain documents relating
to transfers of libraries are missing.
For the foregoing reasons, it is not possible to
determine what rights have effectively been acquired.
It also is unclear who possesses the rights other than
domestic video in the various pictures, and who
possesses the reversion rights in domestic video.
The memorandum related that Epic Productions provided chain-of-
title documentation for only 15 of the 65 film titles (and 22 of
26 development projects), and that many of the 15 film titles for
which Troy & Gould received documentation appeared to be the
subject of domestic video rights licenses to Embassy and
Concorde, but that some of those licenses expired in May 1997.42
Troy & Gould stated that rights to completed pictures in the
EBD film library were apparently acquired by three entities,
Epic, Sultan (or its predecessor, Nelson), and Trans World
Entertainment; however, Troy & Gould could not determine how
these entities acquired rights from other entities appearing in
the chain of title, e.g., Embassy. Troy & Gould concluded that
this failure represented a significant gap in the chain of title.
42
From its examination of these film titles, Troy & Gould
determined that the licenses were for a term of years, in most
cases 10 years from delivery, and that it appeared for the most
part that the licenses had recently expired or would soon expire.
Troy & Gould concluded that “as to pictures for which the video
license to Embassy or Concorde has expired, it would appear that
* * * [SMHC] has no rights whatsoever, unless there are other
assignments (for which we have no documentation) into our chain
of title from the producers or other rights holders.”
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Troy & Gould pointed out: “There is no evidence * * * that
the Epic entities actually transferred their rights in the
subject pictures to EBD, despite the fact that EBD subsequently
purported to transfer rights in the pictures”; and “The
documentation of the chain of title thus appears unsatisfactory
as to the Epic pictures.”
Troy & Gould characterized the various assignments of film
assets from Alpha, Epsilon, and EBD to CLIS as “quitclaim
assignments; that is, the transferors disclaimed all warranties
and representations as to the assets.” Moreover, although the
assignments referred to all right, title, and interest in the
film assets, the attached schedules referred only to “‘U.S. Video
Film Rights’”. Troy & Gould also indicated that it had no
documentation confirming CLIS’s assignment of the EBD film
library to SMHC; it characterized this lack of documentation as
“another significant gap in the chain of title.” Troy & Gould
expressed further concerns that the term “U.S. Video Film Rights”
in Schedule 1.6(b) of the exchange and contribution agreement was
not defined and that the exchange and contribution agreement
contained no explicit statement that SMHC owned those rights.
2. Access Letters
While Troy & Gould was conducting its due diligence on the
EBD film library, it was also attempting to obtain laboratory and
facility access letters to the physical materials of certain film
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titles in order to enter the laboratories and facilities and
examine those physical materials.
VIII. Other Film Activities
In 1997, 1998, and 1999, SMHC (largely through the efforts
of Mr. Lerner, sometimes working with Michael Herz, the vice
president of Troma Entertainment, Inc.) investigated and acquired
a number of film titles and film libraries in addition to the
film library acquired in connection with the CDR transaction. A
June 16, 1999, memo that Mr. Lerner sent to Mr. Ackerman reported
on the film libraries that SMHC had acquired, summarizing the
“initial library and acquisitions”, the number of titles, and
their “Cost” as follows:
Library Number of Titles Cost
MGM (original) 80 $5,000,000
Wisdom 8 120,000
City Lights 15 115,000
Five Stones 5 75,000
Vista Street 24 470,000
Moving Picture Factory 33 320,000
Total 165
New Production Total 2 $615,000
Total 167 $6,715,000
The “Wisdom” library, which Crown Capital purchased in
November 1997 from Wisdom Entertainment, Ltd., contained eight
karate films. The “City Lights” library, purchased by Crown
Capital in September 1997 from Nevada Media Partners, Inc.,
contained 15 full-length feature films. The “Five Stones”
library, purchased by SMHC in October 1998 from Five Stones,
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Inc., contained five film titles. The “Vista Street” library,
purchased by SMHC in March 1999 from Marketing Media Corp. d/b/a
Vista Street Entertainment, contained 24 film titles. The
“Moving Picture Factory” library, purchased by SMHC in October
1998 from The Moving Picture Co., Inc., contained 34 film titles.
SMHC also investigated a number of film titles and film
libraries that, for one reason or another, it did not acquire.
IX. Relationship With TroMetro Films, LLC
A. John H. van Merkensteijn
John H. van Merkensteijn was Mr. Lerner’s longtime friend,
client, and business associate. In the 1970s, Mr. Lerner had
represented Mr. van Merkensteijn in some transactions. Since
then, they have stayed in contact and have been friends. Mr. van
Merkensteijn participated in transactions with Mr. Lerner both
before and after 1996.
B. TroMetro Films, LLC
On December 15, 1997, Mr. van Merkensteijn formed TroMetro
Films, LLC (TroMetro), to be part of a distribution relationship
with SMHC and Troma and to purchase receivables from SMP. Mr.
van Merkensteijn had no office of his own for TroMetro; instead,
he had items sent to Crown Capital’s office.
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C. TroMetro’s Purchases of SMP’s Receivables
In 1997 and again in 1998, TroMetro purchased from SMP
portions of the $974 million in receivables that Generale Bank
had contributed to SMP in 1996.
1. First Note Purchase Agreement
As of December 19, 1997, TroMetro and SMP entered into a
note purchase agreement (the first note purchase agreement) in
which TroMetro agreed to purchase “SMP’s right, title and
interest in and to the $150,000,000 Note” (the $150 million
receivable). The consideration for the $150 million receivable
was: (i) A certified check of $230,000; and (ii) a promissory
note that TroMetro executed in an unspecified amount. SMP agreed
to deliver to TroMetro, at the closing of the transaction, a $150
million note endorsed by SMP and payable to the order of
TroMetro.
As of December 19, 1997, Mr. van Merkensteijn, as manager of
TroMetro, executed an “Unsecured Promissory Note” payable to SMP
in the amount of $2,284,000 (the $2,284,000 Trometro note) in
connection with TroMetro’s purchase of the $150 million
receivable. The terms of this note provided that interest would
accrue at 7 percent per annum, that interest and principal would
be fully amortized over 5 years, and that interest and principal
payments would be due and payable in five equal annual
installments beginning December 19, 1998.
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In connection with the sale of the $150 million receivable
at the end of 1997, Mr. Lerner executed a $150 million note (the
$150 million note) representing a portion of the $974 million in
receivables that Generale Bank had contributed to SMP. The note
stated that MGM Group Holdings owed CLBN $150 million.43 Mr.
Lerner backdated the note as of December 30, 1993, and signed it
as president of MGM Group Holdings; however, Mr. Lerner was not
the president, or an officer, of MGM Group Holdings on that date.
As a result of the sale of the $150 million receivable, SMP
reported the following information on its 1997 Form 1065, U.S.
Partnership Return of Income, with respect to the $150 million
receivable:
Date acquired 12/30/93
Date sold 12/19/97
Sales price $2,514,000
Cost or other basis $150,000,000
Gain or (Loss) for entire year ($147,486,000)
The $147,486,000 loss flowed through to Somerville S Trust.44
43
The note purchase agreement restated that “SMP is the
holder of two Promissory Notes issued by * * * [SMHC] in the
respective principal amounts of $815,904,188.96 and
$150,000,000”.
44
On Dec. 29, 1997, Somerville S Trust contributed all its
outstanding member interests in Somerville, LLC to SMP. This
contribution was reflected on SMP’s 1997 partnership tax return
as a $145,236,168 increase in Somerville S Trust’s capital
account in SMP.
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2. Second Note Purchase Agreement
As of December 10, 1998, TroMetro and SMP entered into a
second note purchase agreement (the second note purchase
agreement) in which TroMetro agreed to purchase “10% of SMP’s
right, title and interest in and to the Note, representing a
$81,590,418 share of the face amount of the Note” (the $81
million receivable).45 The consideration for the $81 million
receivable was: (i) A $150,000 certified check; and (ii) a $1.25
million promissory note from TroMetro.
As of December 10, 1998, Mr. van Merkensteijn, as manager of
TroMetro, executed an “Unsecured Promissory Note” payable to SMP
in the amount of $1.25 million (the $1.25 million TroMetro note)
in connection with TroMetro’s purchase of the $81 million
receivable. The terms of this note provided that interest would
accrue at 7 percent per annum, that interest and principal would
be fully amortized over 5 years, and that interest and principal
payments would be due and payable in five equal annual
installments beginning December 10, 1999.
As of December 10, 1998, Mr. Lerner, as manager of SMP, and
Mr. van Merkensteijn, as manager of TroMetro, signed a document
entitled “Assignment.” Pursuant to this document, SMP assigned
45
The second note purchase agreement stated that SMP was
the holder of an $815,904,188.96 promissory note that SMHC had
issued.
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to TroMetro, and TroMetro purchased and assumed from SMP, SMP’s
right, title, and interest in the $81 million receivable.
As a result of the sale of the $81 million receivable, SMP
reported the following information on its 1998 Form 1065 with
respect to the $81 million receivable:
Date acquired 12/30/93
Date sold 12/10/98
Sales price $1,400,000
Cost or other basis $81,590,418
Gain or (Loss) for entire year ($80,190,418)
The $80,190,418 loss flowed through to Somerville S Trust.
3. Purchase Price Determinations
Mr. van Merkensteijn testified that the purchase price for
the $150 million receivable and the $81 million receivable was
determined as percentages of the total value of SMHC’s assets,
after applying a discount. He testified that the total value of
the assets in this calculation was based on an appraisal that Mr.
Lerner had obtained from Sage Entertainment.46 Mr. van
Merkensteijn did not obtain his own appraisal of SMHC’s assets.
4. Payments on the TroMetro Notes
On December 21, 1998, TroMetro made a $557,046.35 payment to
SMP on the $2,284,000 TroMetro note. This payment consisted of
$397,166 principal and $159,880.35 interest. It was the only
46
At some point, Mr. Lerner had asked Sage Entertainment
for an opinion valuing the EBD film library. He had obtained an
opinion from Steve Kutner of that company valuing the library at
approximately $29 million.
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cash payment TroMetro ever made on the $2,284,000 TroMetro note.
On December 21, 1998, TroMetro paid SMP $150,000 pursuant to the
second note purchase agreement. TroMetro never made any
additional cash payments on the $1.25 million TroMetro note.
X. Distribution Agreements
In 1997, SMHC entered into a distribution agreement with
TroMetro which, in turn, entered into a distribution agreement
with Troma. The distribution agreements covered a portion of the
EBD film library and several of SMHC’s acquired libraries.
A. The TroMetro Distribution Agreement
As of December 23, 1997, SMHC and TroMetro entered into a
distribution agreement (the TroMetro distribution agreement).
Pursuant to this agreement, SMHC gave TroMetro a license to
distribute 33 of the 65 film titles within the EBD film library,
as well as the “Wisdom” library and the “City Lights” library.47
TroMetro never paid any royalties to SMHC pursuant to the
TroMetro distribution agreement.
47
The 33 film titles from the EBD film library were:
“Astro Zombies”, “Auditions”, “Avenger”, “Banana Monster”,
“Battle of the Last Panzer”, “Battle of the Valiant”, “The
Beast”, “Blood Brothers”, “Blood Castle”, “Carthage in Flames”,
“Cold Steel for Tortuga”, “Dual of Champions”, “Escape From
Hell”, “Fear”, “Fist of Fear, Touch of Death”, “Headless Eyes”,
“Invincible Gladiators”, “Return of the Conqueror”, “Return of
the Zombies”, “SS Experimental Love Camp”, “The Sword and the
Cross”, “Tiger of the Seven Seas”, “Tormentor”, “White Slave”,
“Octavia”, “Platypus Cove”, “Hullabaloo Over Georgia”, “To Love
Again”, “This Time I’ll Make You Rich”, “Danger Zone”,
“Sidewinder One”, “Ninja Showdown”, and “Ninja Squad”.
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B. The Troma Distribution Agreement
As of December 23, 1997, TroMetro and Troma Entertainment,
Inc. (Troma), an independent production and distribution company
in New York City, entered into a distribution agreement (the
Troma distribution agreement), covering the same film titles as
the TroMetro distribution agreement.48 Troma never paid any
royalties to TroMetro pursuant to the Troma distribution
agreement.
C. Troma Entertainment, Inc.
Michael Herz and Lloyd Kaufman started Troma while they were
students at New York University Law School in 1974.49 Troma is
owned by Messrs. Herz and Kaufman, a private company called QIC
controlled by Alan Quasha, and Foster Partnership.
In the early 1980s, Troma began distributing its films with
a film called “Squeeze Play.” Troma eventually produced 25 to 30
films and acquired a number of films through purchases and
distribution deals. Troma currently has 800 to 850 film
48
On Nov. 2, 1998, TroMetro and Troma entered into an
addendum, to which SMHC acknowledged and consented, amending the
Troma distribution agreement. Pursuant to this addendum, the
“Moving Pictures” library and the “Five Stones” library were
added to the Troma distribution agreement. No addendum was made
to the TroMetro distribution agreement.
49
Mr. Lerner was introduced to Mr. Herz by Mr. van
Merkensteijn.
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titles.50 All of Troma’s film titles are available on its
website, and there are distribution materials such as advertising
slicks for them. Not all of Troma’s films, however, are in
current distribution.51
D. Troma’s Distribution of the EBD Film Library
1. Distribution History
SMHC and SMP distributed no films prior to forming their
relationship with Troma. Troma was the only distributor of SMHC
films. Of the 65 film titles in the EBD film library, Troma
ultimately distributed six films: “Astro Zombies”, “Banana
Monster”, “Battle of the Last Panzer”, “Escape from Hell”, “Fist
of Fear, Touch of Death”, and “Plutonium Baby”.52
Several of these distributions ran into legal troubles. On
March 27, 1998, Epic Productions informed Troy & Gould that
SMHC’s rights had expired in “Astro Zombies”, “Banana Monster”,
50
There are several stars in Troma’s films, including Billy
Bob Thornton and Kevin Costner. The character “Toxic Avenger” is
Troma’s ‘Mickey Mouse’, having been featured in four action
movies and a children’s cartoon that Troma distributed.
51
About 200 to 220 of Troma’s film titles have actually
been authored and digitized and are out in U.S. distribution on
DVD. The remaining film titles are not in distribution because
the process of preparing them for distribution is costly, and
because Troma needs to be sure that the market can absorb the
number of films that it presents for distribution on a monthly
basis.
52
Troma created distribution materials for the eight film
titles in the “Wisdom” library.
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and “Fist of Fear, Touch of Death”.53 Moreover, on June 23,
1999, a representative of Gazotskie Films, Inc., informed Troma
Entertainment that SMHC “does not have, nor has it ever had, any
rights” relating to “Banana Monster” (a.k.a. “Schlock”), and
requested that Troma cease and desist its distribution of that
film title. Also, on October 23, 1999, Jack H. Harris, the
president of Worldwide Entertainment Corp., informed Troma that
SMHC’s rights in the film title “Astro Zombies” had actually
expired in 1987, and requested that Troma cease and desist its
distribution of that film.
2. Distribution Revenue and Expenses
In the course of distributing SMHC films, Troma incurred
expenses (e.g., for advertising slicks and media costs) which
SMHC either advanced or reimbursed pursuant to the TroMetro and
Troma distribution agreements. Periodically, Troma sent Crown
Capital (on behalf of SMHC) statements of revenue and expenses
and invoices regarding these expenses and the distribution of
SMHC films.54
53
Epic Productions informed SMHC that its rights in
“Headless Eyes” had also expired.
54
For example, Troma sent Crown Capital (on behalf of SMHC)
a statement of revenue and expenses as of June 30, 1998, showing
no revenues, $234,000 in expenses, and an advance payment of
$230,000. Troma also sent Crown Capital an invoice for creation
of distribution materials (including production of press and
media) for the “Wisdom” library for the period June 1 to 30,
1998, showing expenses of $44,000. Troma sent to “TroMetro-Santa
(continued...)
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Mr. Herz testified that the agreement with TroMetro and SMHC
had always been for Troma to retain any net revenue from its
distribution activities to fund additional distribution expenses
rather than to remit royalties.55 SMHC reported and received no
income from licensing video rights to film titles or film
financing during 1997 and 1998.
XI. Transactions With Imperial Credit Industries, Inc.
In 1997, the Ackerman group engaged in discussions with
Imperial Credit Industries, Inc., culminating in the formation of
Corona Film Finance Fund, LLC.
A. Imperial Credit Industries, Inc.
Before 1992, Imperial Bank acquired or started six different
operating businesses. In 1991, Imperial Bank decided to take two
of those six businesses public, including a residential mortgage
business and thrift and loan. In 1992, Imperial Bank
54
(...continued)
Monica” a statement of revenue and expense as of Dec. 31, 1998,
for films that Troma distributed on behalf of TroMetro and SMHC.
This statement shows $23,250 in revenue, $6,907.91 in
distribution expenses, and a $16,342.09 amount due TroMetro. On
Nov. 4, 1998, Troma sent Crown Capital another invoice for
$103,025 on the release of video and DVD for “Banana Monster”,
“Fist of Fear, Touch of Death”, “Astro Zombies”, “Battle of Last
Panzer”, and “Escape from Hell”. This invoice requested a
$50,000 advance payment.
55
In at least one case, the statement to “TroMetro-Santa
Monica” as of Dec. 31, 1998, states “Check Enclosed” for the
amount of revenues exceeding distribution expenses. Mr. Herz
testified that he did not think a check was in fact sent to
TroMetro or SMHC, given the agreement to retain net revenue.
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successfully combined those businesses and took them public as
Imperial Credit Industries, Inc. (Imperial).56
During 1996 and 1997, Imperial was a diversified financial
services company. It was involved in franchise lending,
residential lending, income property lending, asset-based
lending, and warehouse lines for mortgage bankers. Imperial’s
investments included, among other things, an equipment leasing
company, a boutique investment bank, and an auto financing
company. In 1996, Imperial had 10 operating divisions. Film
finance was not one of Imperial’s operating divisions.
B. Shopping for Tax Deals
At some point in 1997, Imperial sold its interests in
Franchise Mortgage Acceptance Corp. (FMAC) and Southern Pacific
Funding Corp. (SPFC), resulting in capital gains to Imperial--
approximately $300 million from FMAC and $150 million from SPFC.
In the planning stage of these transactions, Kevin Villani, as
Imperial’s CFO, was asked to develop a plan with favorable
offsetting tax implications.
On August 27, 1997, at a meeting of Imperial’s board of
directors, Wayne Snavely, who was Imperial’s CEO and chairman,
and Mr. Villani reported that Imperial had significant taxable
capital gains to be realized from securities sales in 1997. Mr.
56
At one point, Imperial Bank owned 100 percent of
Imperial; after spinning Imperial out, however, Imperial Bank’s
ownership interest fell to 40 percent.
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Villani was requested to develop a plan for presentation to the
Board that would include potential investments with favorable
offsetting tax implications.
C. Proposed Transaction With SMP
Mr. Lerner was on Imperial’s board of directors during 1996,
1997, and 1998. Mr. Lerner was aware that Imperial was actively
looking for a transaction that would generate large capital
losses to offset its capital gains.
On October 7, 1997, Mr. Lerner sent Mr. Villani a memorandum
discussing a proposal whereby Imperial would purchase a 25-
percent interest in SMP for $5 million. Mr. Lerner represented
that SMP had “assets totaling $49 million (with zero liabilities)
including: $29 million in film library assets (appraised value)
and $20 million in cash[.] ICII’s 25% share of the assets would
equal approximately $12.25 million, a multiple of the proposed
investment”. The memorandum stated: “Rockport intends to use
* * * [SMP] as a platform to finance and build a film library of
significant size that should enable * * * [SMP] to capitalize on
a changing dynamic that is occurring in the film industry.” The
memorandum also stated:
Tax Attributes. In addition to the foregoing, the
Company may realize income tax benefits on the disposal
of its assets in the form of capital losses. Based on
a 25% ownership interest, * * * [Imperial’s] share of
such losses would be approximately $400 million. We
anticipate that the parties would enter into a tax
sharing agreement providing for a sharing of the
benefits attributable to this loss[.]
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Imperial received and considered this memorandum.
On October 24, 1997, Mr. Lerner sent Mr. Villani an email
stating:
I am preparing a short term sheet for the film
partnership investment we discussed last week. I
haven’t heard any more from KPMG and I assume that they
have no more comments. The two issues we need to tie
down are the size of the investment and the
compensation formula. A quarter of the partnership
would give * * * [Imperial] a loss of about $430
million. The board should approve the deal in broad
outlines and we should then work out the details as
quickly as possible since time is running out on the
year and you have a lot of things to do. * * *
On October 27, 1997, Mr. Lerner faxed Mr. Villani a
confidential letter outlining the proposed transaction between
SMP and Imperial:
1. * * * [Imperial] will acquire 25 percent of
SMP for $5.0 million (25 percent of SMP’s cash assets),
payable in cash at the Closing. * * * [Imperial] may
also have the option to increase its interest in SMP on
agreed terms.
2. Any tax benefits derived by * * * [Imperial]
or its affiliates associated with an ownership interest
in SMP, including the sale or disposition of any of its
assets, will be shared with SMP’s current partners on a
50-50 basis. Amounts received by SMP’s partners as a
result of the sharing of tax benefits will be available
for investments with * * * [Imperial] on a deal by deal
basis. We anticipate that * * * [Imperial’s] share of
SMP’s potential tax losses will exceed $430 million.
On October 29, 1997, at a second meeting of Imperial’s board
of directors, Mr. Lerner proposed that Imperial invest in SMP.
Mr. Snavely testified that the proposed investment in SMP was
supposed to result in favorable tax treatment.
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On November 19, 1997, at a third meeting of Imperial’s board
of directors, Mr. Lerner formally offered Imperial a 25-percent
equity interest in SMP in exchange for a $5 million cash
investment. At this meeting, Mr. Lerner distributed a handout
that described SMP. He discussed SMP’s assets (including its
film rights), and he explained SMP’s securitization and other
financing plans. Mr. Lerner also discussed “the potential market
for securitization of film libraries and the due diligence
performed to date by * * * [Imperial’s] external accountants.”
After discussing this proposal, Imperial’s board resolved to
invest in SMP.57
D. Proposed Transaction With Corona
1. Formation of Corona Film Finance Fund, LLC
As of November 5, 1997, Mr. Lerner, on behalf of himself,
Peridon Corp. (Peridon), and SMP, executed an “Operating
Agreement” for the creation of Corona Film Finance Fund, LLC
(Corona) as a limited liability company (the Corona LLC
agreement). The initial members of Corona were Mr. Lerner,
Peridon, and SMP. Mr. Lerner contributed $5,000 cash, Peridon
57
Regarding this proposal, Mr. Snavely testified:
There was discussions [sic] about an opportunity
for us to invest in this business, and we did have some
expertise in securitization, and there were discussions
about acquiring film libraries, all of which was
interesting, but we were also interested in making sure
that it fit our tax strategies.
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contributed $10,000 cash, and SMP contributed $250,000 cash and
the $79 million receivable. As of November 5, 1997, Corona’s
capital accounts and percentage interests were as follows:
Capital Account Percentage Interest
Imperial $0 0.00%
SMP 1,550,000 99.00
Mr. Lerner 5,000 0.33
Peridon 10,000 0.67
Total $1,565,000 100.00
The Corona LLC agreement recited that the purposes for
Corona’s formation were “to finance the production and
exploitation of filmed entertainment products and to own
interests in entities engaged in such activities” and “to make
investments in connection with the foregoing activities and
otherwise.” The Corona LLC agreement appointed Mr. Lerner as its
manager and authorized him to act on behalf of Corona to appoint
employees, officers, or additional managers, and to bind the
company in dealings with third parties.58
2. The Corona Transaction
On December 11, 1997, Mr. Lerner sent an email to Irv
Gubman, Imperial’s general counsel, proposing that the previously
discussed transaction be done through Corona rather than SMP.
The email states:
58
On Dec. 16, 1997, the secretary of state of Delaware
certified: “Corona Film Finance Fund LLC is duly formed under
the laws of the State of Delaware and is in good standing and has
a legal existence so far as the records of this Office show as of
the sixteenth day of December, A.D. 1997.”
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Dear Irv. I have thought about our conversation last
night and the risk at this point in time. I suggest
the following: Lets just do the transaction for a loss
of 70 mil (the amount you need, or perhaps a little
more or less) through, as we discussed, a new
partnership. This reduces the risk related to size. I
like this structure much better as it solves your
problem today. We can take next year as it comes.
Thus, the plan would be as follows: We will create a
new partnership [Corona] into which we will transfer
high basis debt. * * * [Imperial] will buy a part of
our partnership interest for a price related to the
value of the partnership’s assets. This will be much
less than the amount we originally discussed, probably
around $500,000. On the pricing, my partner wants to
keep the pricing the same, which we should discuss. In
any event, think about this and let me know. We can
get this done quickly as I have the entities set up.
Thanks, Perry.
Mr. Lerner testified that he was uncomfortable with the large
size of the capital loss resulting from the proposed transaction
with SMP; he suggested a smaller capital loss. He testified that
he purposely told Imperial that it would be very expensive for
them because he felt that SMP should profit from Imperial’s
capital loss.
On December 12, 1997, Mr. Lerner sent a second email to Irv
Gubman concerning the proposed transaction with Corona. In this
email, Mr. Lerner recommended that Imperial purchase part of
SMP’s partnership interest for an amount “sufficient to give it
a share of the basis equal to around 60-65 million dollars. This
loss will be triggered if the * * * [$79 million receivable] is
sold. * * * (I think that most of this should be claimed in 1997
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as we have a buyer for it by the end of the year.)” The email
further states:
5. * * * [Imperial] will need to put capital in for
the tax sharing, above and some debt to increase basis.
* * * Paul [Lasiter] understands this point. I want to
use paart [sic] of the cash to invest with The Lew
Horowitz organization to finance movie production.
This will come out of our share of the tax sharing
payment. * * *
On or about December 12, 1997, drafts were prepared of a
purchase agreement and an amendment and restatement of the Corona
LLC agreement. In the purchase agreement, SMP agreed to sell and
Imperial agreed to purchase 80 percent of SMP’s interest in
Corona. Mr. Gubman reviewed these drafts and made a handwritten
notation on the draft amendment and restatement of Corona’s LLC
agreement which proposed that “if Imperial’s Allocated Losses are
disallowed, then upon liquidation of the Company [Corona] all
moneys contributed to the Company by Imperial shall be returned
to Imperial and accrued interest shall be paid thereon at the
Treasury (IRS) rate.”59
On December 17, 1997, at a fourth meeting of Imperial’s
board of directors, Mr. Snavely announced that Mr. Lerner had
submitted a revised proposal under which Imperial could invest in
Corona rather than SMP. Imperial’s board reviewed and approved
the revised proposal. Mr. Snavely testified that tax losses were
59
This notation was the only significant comment that Mr.
Gubman made on the draft amendment and restatement of the Corona
LLC agreement.
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driving the Corona transaction and were the primary reason in
1997 for Imperial’s investing in the Corona transaction.
3. Initial Purchase of SMP’s Interest in Corona
SMP and Imperial executed a purchase agreement (the purchase
agreement), as of December 15, 1997, providing for Imperial’s
purchase from SMP of a 79.2-percent membership interest in
Corona. According to the purchase agreement, Imperial was to pay
$1,252,000 for the membership interest, of which $212,000 was to
be paid in cash and the $1.04 million balance was to be paid with
a note. In connection with the purchase agreement, Imperial
executed a $1.04 million promissory note (the $1.04 million note)
dated December 15, 1997, payable to SMP. On December 18, 1997,
Imperial paid $212,000 to SMP. No payments of principal or
interest were ever made on the $1.04 million note.60
In an amendment and restatement dated as of December 15,
1997, Corona’s LLC agreement was amended and restated to reflect
the admission of Imperial as a new member of Corona. This
document reflected Imperial’s agreement to pay SMP a fee of 20
percent of the tax losses received from Corona. This fee was to
be structured as a contribution by Imperial to Corona and a
60
Pursuant to the $1.04 million note, interest was to
accrue at a rate of 8 percent per annum and was payable
semiannually on June 15 and December 15 of each year. Imperial
agreed to pay the outstanding principal amount of the $1.04
million note together with accrued and unpaid interest thereon on
Dec. 15, 2002.
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distribution from Corona to SMP. As a result of Imperial’s
purchase of SMP’s membership interest in Corona, Corona’s capital
accounts and percentage interests were restated as follows:
Capital Account Percentage Interest
Imperial $1,240,000 79.20%
SMP 310,000 19.80
Mr. Lerner 5,000 0.33
Peridon Corp. 10,000 0.67
Total $1,565,000 100.00
On its November 5 to December 15, 1997, partnership tax
return, Corona reported Imperial’s initial purchase of SMP’s
interest as a $64,130,364 capital reduction by SMP and a
$64,130,364 capital contribution by Imperial. Corona reported
these amounts at tax values, not accounting book values. On its
tax return for the taxable year ended December 31, 1997, SMP
reported the sale of its interest in Corona to Imperial as
follows:
$1,252,000 Sales price
63,489,061 Basis
(62,237,061) Long-term capital loss
The $62,237,061 loss that SMP reported flowed through to
Somerville S Trust and then through to Mr. Ackerman, who claimed
it on his tax return.
4. Additional Purchase of SMP’s Interest in Corona
On December 23, 1997, Imperial purchased from SMP an
additional 14.65-percent interest in Corona pursuant to an
amendment to purchase agreement. With this purchase, Imperial
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had acquired a total interest in Corona of 93.85 percent.
Imperial paid $36,700 in cash for the additional interest and
increased the amount of its promissory note to SMP by $180,050
for a total note payable of $1,220,050 (the $1,220,050 note).
Imperial made no payments of principal or interest on this
note.61
On December 23, 1997, the members of Corona executed an
amendment to the amended and restated Corona LLC agreement,
providing for Imperial’s purchase of the 14.65-percent additional
interest in Corona. According to this amendment, Corona’s
capital accounts were restated as follows:
Capital account Percentage interest
Imperial $1,469,000 93.85
SMP 81,000 5.15
Mr. Lerner 5,000 0.33
Peridon Corp. 10,000 0.67
Total $1,565,000 100.00
On its partnership tax return for the period December 16 to
31, 1997, Corona reported Imperial’s additional purchase as an
$11,864,117 capital reduction by SMP and an $11,864,117 capital
contribution by Imperial.
61
Pursuant to the $1,220,050 note, interest was to accrue
at a rate of 8 percent per annum and was payable semiannually on
June 15 and December 15 of each year. Imperial agreed to pay the
outstanding principal amount of the $1,220,050 note together with
accrued and unpaid interest thereon on Dec. 15, 2002.
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On its partnership tax return for the taxable year ended
December 31, 1997, SMP reported the sale of the additional 14.65-
percent interest in Corona to Imperial as follows:
$216,750 Sales price
11,864,117 Basis
(11,647,367) Short-term capital loss
This $11,647,367 loss flowed through to the Somerville S Trust
and then through to Mr. Ackerman, who claimed it on his tax
return.
5. Sale of the $79 Million Receivable
On December 29, 1997, Mr. Lerner, on behalf of Corona, and
Mr. van Merkensteijn, on behalf of TroMetro, executed a note
purchase agreement providing for Corona’s sale of the $79 million
receivable to TroMetro. According to this agreement, the
purchase price to be paid by TroMetro was $1,144,000, to consist
of $120,000 cash and a $1,024,000 promissory note payable by
TroMetro to Corona.62
On December 29, 1997, the $120,000 cash amount was paid by
wire transfer. Mr. van Merkensteijn, on behalf of TroMetro,
executed a $1,024,000 promissory note dated December 29, 1997
62
In arriving at a purchase price for the $79 million
receivable, Mr. van Merkensteijn testified that he used the same
pricing formula as in TroMetro’s purchases of the $150 million
and $81 million receivables, and he similarly relied on the Sage
Entertainment appraisal of SMHC’s film assets.
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(the $1,024,000 TroMetro note).63 On December 10, 1998, TroMetro
paid $205,191 principal and $82,600 interest on the $1,024,000
TroMetro note. No other cash payments were made on the
$1,024,000 Trometro note.
On its partnership tax return for the period December 16 to
31, 1997, Corona reported a $78,768,955 long-term capital loss on
the sale of the $79 million receivable. In computing this loss,
Corona reported a $1,144,000 sale price and $79,912,955 basis for
the $79 million receivable. The loss flowed through to Imperial
in the amount of $74,671,378 and to SMP in the amount of
$4,097,577. SMP’s $4,097,577 loss then flowed through to
Somerville S Trust and finally through to Mr. Ackerman. On
Schedules K-1 attached to its return, Corona reported the sale of
the $79 million receivable as a $74,671,378 decrease in
Imperial’s capital account and a $4,097,577 decrease in SMP’s
capital account.
6. Imperial’s Capital Contribution
On January 15, 1998, Corona’s members executed a second
amendment to the amended and restated Corona LLC agreement,
providing that “At the end of any year in which there are
63
At some point, Mr. van Merkensteijn, on behalf of
TroMetro, executed a second promissory note also dated Dec. 29,
1997, in the amount of $1.180 million (the $1.180 million
TroMetro note). Mr. van Merkensteijn testified that the first
note was corrected to reflect a different amount. The $1,024,000
TroMetro note in the record has the handwritten notation
“Cancelled” on its first and last pages.
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Allocated Losses to Imperial, Imperial shall promptly contribute
cash in an amount equal to 20.0% of such Allocated Loss.” During
taxable year 1998, Imperial made a $14,595,652 capital
contribution in cash to Corona. This contribution was made in
connection with the 20-percent fee that Imperial had agreed to
pay SMP for the tax losses that it received from the Corona
transaction. SMP later received this $14,595,652 fee.
7. Treasury Bills
In 1997, Imperial had insufficient basis in Corona to
recognize the tax losses that were going to flow through from
Corona. Consequently, Imperial and Corona devised a scheme,
starting in 1997, in which Imperial would purchase U.S. Treasury
bills each yearend and simultaneously enter into a repurchase
agreement to sell those Treasury bills back at the beginning of
the next year. At each yearend, in order to increase its tax
basis in Corona, Imperial temporarily assigned the Treasury bills
and repurchase agreement to Corona. Imperial repeated the
Treasury bill transactions for its 1998 through 2001 taxable
years.
XII. Subsequent Transactions Involving TroMetro and Troma
A. Capital Contribution Agreement
As of March 1, 1999, SMHC and TroMetro entered into a
capital contribution agreement. Pursuant to this agreement,
TroMetro contributed, assigned, transferred, and conveyed to SMHC
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all the interests that TroMetro owned and held in the $81 million
receivable, the $150 million receivable, and the $79 million
receivable. In exchange, TroMetro received a right to receive 20
percent of all classes of stock of SMHC (or its successor),
exercisable by TroMetro any time after March 1, 2001 (the
TroMetro stock option).
B. Assumption Agreement
As of September 1, 1999, SMP, SMHC, and TroMetro entered
into an assumption agreement. Pursuant to this agreement, SMP
assumed SMHC’s obligation under the TroMetro stock option.
C. Transfer and Assignment of the Carolco Securities
On September 1, 1999, SMHC transferred and assigned to SMP
the Carolco preferred stock ($30 million face amount) and the
Carolco subordinated notes ($30 million face amount).
D. SMHC and Troma Merger
1. SMHC Merges Into Troma
As of September 1, 1999, Troma’s stockholders and board of
directors approved actions in connection with the issuance of
common and preferred stock to SMHC. As of September 2, 1999,
SMHC and Troma entered into a purchase agreement. Pursuant to
this agreement, SMHC purchased 1,070.6 shares of Troma common
stock and 400 shares of Troma Series B convertible preferred
stock in exchange for all the assets listed on Schedule 3.3 of
the agreement and $2.22 million in cash (the SMHC and Troma
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merger). The assets listed on Schedule 3.3 were the EBD film
rights, the EBD development projects, the “City Lights” library
(except for 1 specific film), the “Wisdom” library, the “Moving
Pictures” library (except for 4 specified films), the “Five
Stones” library, and the “Vista Street” library.64
2. SMHC’s Dissolution
On December 10, 1999, SMHC was dissolved. SMP thereafter
became the owner of 1,070.6 shares of Troma common stock and 400
shares of Troma Series B convertible preferred stock.65
3. Tax Return Treatment of the Transaction
On its amended 1999 corporate income tax return, SMHC
reported that on December 10, 1999, a “C” reorganization took
place between SMHC and Troma whereby Troma acquired all of SMHC’s
assets solely in exchange for Troma voting stock (the C
reorganization).66 SMHC also reported that “Immediately prior to
the ‘C’ reorganization * * * [SMP], the sole shareholder made a
64
Schedule 3.3 included the film title “Mommy’s Epitaph”,
which was not a part of any of SMHC’s film libraries. It also
included a 22-film library that SMHC was to acquire for $485,000;
however, SMHC did not acquire this library. As a result, on
Sept. 2, 1999, SMHC and Troma amended the asset purchase
agreement with SMHC agreeing to contribute an additional $630,000
to Troma’s capital in lieu of the 22-film library.
65
Apparently, the stock certificates previously issued to
SMHC were marked “Void,” and new stock certificates were issued
to SMP.
66
On its amended 1999 partnership return, SMP reported that
the C reorganization between SMHC and Troma occurred on Sept. 2,
1999.
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capital contribution consisting of obligations of the company
having a face value and adjusted basis of $738,307,459.” SMHC
reported that “Subsequent to the asset transfer, * * * [SMHC]
liquidated and distributed the Troma Entertainment, Inc. stock
(which it received in exchange for its assets) to its sole
shareholder * * * [SMP].”
On its amended 1999 partnership return, SMP reported its
total basis in the Troma stock as $1,409,759,123.
4. Termination of the Distribution Agreements
On June 21, 2001, in connection with the SMHC and Troma
merger, TroMetro sent to Mr. Herz of Troma and Mr. Lerner of SMP
a letter confirming for SMP’s and Troma’s records: (1) The
consideration that was due and payable by TroMetro to SMHC
pursuant to the TroMetro distribution agreement for the period
December 23, 1997, to September 2, 1999, was waived; and (2) the
consideration receivable by TroMetro from Troma pursuant to the
Troma distribution agreement for the period December 23, 1997, to
September 2, 1999, was waived. In this letter, TroMetro asked
SMP and Troma to confirm for TroMetro’s records that: (1) The
agreement to the termination of the TroMetro and Troma
distribution agreements; and (2) the agreement to waive any
consideration due under those distribution agreements.67
67
Mr. Lerner signed this letter on June 21, 2001; Mr. Herz
signed it but did not date it.
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At some point thereafter, the TroMetro distribution
agreement and the Troma distribution agreement were terminated.
Both TroMetro and SMHC waived any rights under those agreements
to all royalties that had accrued between December 23, 1997, and
September 2, 1999.
E. Letter Agreement With TroMetro
On March 29, 2001, Mr. van Merkensteijn, on behalf of
TroMetro, and Mr. Lerner, on behalf of SMP, entered into a letter
agreement. Pursuant to this letter agreement, TroMetro deferred
its right to exercise the TroMetro stock option for no more than
6 months.
F. Troma Finance, LLC
As of December 12, 2001, Troma Finance, LLC (Troma Finance),
SMP, and TroMetro entered into an “Operating Agreement of Troma
Finance LLC”. Pursuant to this agreement, Troma Finance was
formed and TroMetro was designated as its manager.68
As of December 12, 2001, Troma Finance and TroMetro executed
a document entitled “Capital Contribution and Assignment and
68
Mr. Lerner testified that Troma Finance was formed with a
view of consolidating all the ownership interests in Troma into
one entity for purposes of making a sale of the company.
According to Mr. Lerner, Mr. van Merkensteijn was negotiating
with a certain party for the sale of Troma, and “he wanted to
make sure that all of the ownership interests were in one entity
so he wouldn’t have to keep going back around”.
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Assumption Agreement” between Troma Finance, SMP, and TroMetro.69
Pursuant to this agreement, SMP agreed to contribute to Troma
Finance: (i) $3.4 million in cash, (ii) the $2,284,000 TroMetro
note, (iii) the $1.25 million TroMetro note, (iv) 1,070.6 shares
of Troma common stock, and (v) 400 shares of Troma Series B
convertible preferred stock.70 TroMetro agreed to contribute to
Troma Finance: (i) The TroMetro stock option, and (ii) its 75-
percent interest in the Action Entertainment Co. (a New York
general partnership). Troma Finance assumed TroMetro’s
obligations under: (i) A $150,000 note issued by TroMetro to IFG
Film Fund, LLC, (ii) the $1,024,000 TroMetro note, (iii) the
$2,284,000 TroMetro note, and (iv) the $1.25 million TroMetro
note.
XIII. Business Characteristics of SMP, Corona, and SMHC
A. SMP
SMP has never had any employees. Until December 1997, SMP
had no bank account. During the taxable years ended December 31,
1997 and 1998, SMP had no separate office of its own; it used the
same business address as Crown Capital.
69
SMP did not execute this document.
70
In lieu of a cash contribution, Mr. Lerner, as manager of
SMP, executed a $3.4 million promissory note dated Dec. 12, 2001.
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SMP neither received nor reported any income from film
financing, film library licensing, or video rights licensing
during its taxable years ended 1997 and 1998.
B. Corona
Corona has never had any employees. During the taxable
years ended December 31, 1997 and 1998, Corona had no separate
office of its own; it used the same business address as Crown
Capital.
Corona received no income from film financing, film library
licensing, or video rights licensing during its taxable years
ended December 31, 1997 and 1998.
C. SMHC
SMHC had no employees from December 11, 1996, until it was
dissolved in 1999. All its work was done by Crown Capital. SMHC
had no bank account from December 11, 1996 until December 1998.
During the taxable years ended December 31, 1997 and 1998, SMHC
did not have a separate office of its own; it used the same
business address as Crown Capital.
XIV. Partnership Tax Returns
A. SMP
Following an extension to October 15, 1998, SMP filed its
1997 partnership tax return, which it dated October 14, 1998.
Following an extension to October 15, 1999, SMP filed its 1998
partnership tax return, which it dated October 14, 1999. SMP
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thereafter filed an amended 1998 partnership tax return, which it
dated October 22, 1999. During the taxable years at issue, SMP
reported Mr. Lerner, Rockport Capital, Somerville S Trust,
Generale Bank, and CLIS as having varying interests in SMP’s
profits, losses, and ownership of capital.
On its 1997 tax return, SMP reported that the adjusted basis
of the $974 million in receivables from Generale Bank was
$974,296,601; that the adjusted basis of the $79 million
receivable was $79,912,955; and that the adjusted basis of the
SMHC stock was $665 million. On its 1998 return, SMP reported
that the adjusted basis of one portion of the $974 million in
receivables was $81,590,418; that the adjusted basis of the
remaining portion was $512,793,227; and that the adjusted basis
of the SMHC stock was $665 million.
On Schedule D, Capital Gains and Losses, of its 1997
partnership tax return, SMP reported its sales of the $150
million (face value) notes receivable to TroMetro, and its sales
to Imperial of 14.8 and 79.2-percent interests in Corona. As
described in more detail supra, SMP reported a long-term capital
loss of $147,486,000 on its sale of the receivable; a short-term
capital loss of $11,647,367 with respect to the sale of the 14.8-
percent Corona interest; and a long-term capital loss of
$62,237,061 with respect to the sale of the 79.2-percent Corona
interest.
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On Schedule D of its 1998 partnership tax return, SMP
reported its sale of $81,590,418 (face value) notes receivable.
As described in more detail supra, SMP reported a long-term
capital loss of $80,190,418 on this sale.
B. Corona
Following an extension to October 15, 1998, Corona filed its
1997 partnership tax return (for the period December 16, 1997, to
December 31, 1997), which it dated October 14, 1998. Corona
reported Mr. Lerner, Peridon, SMP, and Imperial as having varying
interests in Corona’s profits, losses, and ownership of capital.
Corona reported Mr. Lerner as its tax matters partner.
Corona reported a $79,912,955 basis in the $79 million
receivable. As described in more detail supra, on Schedule D of
its 1997 partnership tax return Corona reported selling this
receivable for a long-term capital loss of $78,768,955.
C. Mr. and Mrs. Ackerman
Peter and Joanne Ackerman filed joint Federal income tax
returns for 1997 and 1998. On their 1997 return, the Ackermans
reported a net long-term capital loss from SMP of $213,715,813
and a net short term capital loss from SMP of $11,545,023.
Among other gains and losses, the $213,715,813 net long-term
capital loss included these items: a $147,486,000 loss that
flowed through from SMP to Somerville S Trust to the Ackermans
when SMP sold the $150 million receivable in 1997; a $62,237,061
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loss that flowed through from SMP to Somerville S Trust to the
Ackermans when SMP sold 79.2 percent of its interest in Corona in
1997; and a $4,097,577 loss that flowed through from Corona to
SMP to Somerville S Trust to the Ackermans when Corona sold the
$79 million receivable in 1997.71
The $11,545,023 net short-term capital loss flowed through
from SMP to the Ackermans when SMP sold 14.65 percent of its
interest in Corona to Imperial in 1997.72
On their 1998 return, the Ackermans reported a net long-term
capital loss from SMP of $80,190,418, which flowed through from
SMP to Somerville S Trust to the Ackermans when SMP sold the $81
million receivable to TroMetro in 1998.73
71
On its 1997 return, SMP reported a net long-term capital
loss of $213,715,689 on Schedule D, Capital Gains and Losses.
From this amount, SMP passed through net long-term capital gains
of $62 to Mr. Lerner and $62 to Rockport Capital, and a net long-
term capital loss of $213,715,813 to Somerville S Trust.
72
The sale of the 14.8-percent interest in Corona resulted
in a $11,647,367 loss on SMP’s 1997 tax return. SMP reported a
net short-term capital loss of $11,544,902. From this amount,
SMP passed net short-term capital gains of $60 to Mr. Lerner and
$61 to Rockport Capital and a short-term capital loss of
$11,545,023 to Somerville S Trust.
73
On Schedule D of its 1998 return, SMP reported a net
long-term capital loss of $79,979,011; however, it passed through
a net long-term capital loss of $80,190,418; i.e., the entire
amount of the loss that it reported on the sale of the $81
million receivable. SMP reported $211,407 as its share of net
long-term capital gain from other partnerships, estates, and
trusts. SMP failed to pass this amount through to its members
via Sch. K, Partners Share of Income, Credits, Deductions, etc.
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XV. Notices of Final Partnership Administrative Adjustment
A. SMP
On January 24, 2003, respondent issued Notices of Final
Partnership Administrative Adjustment (FPAAs) to SMP for its
taxable years ended December 31, 1997 and 1998.
For 1997, respondent disallowed SMP’s claimed long-term
capital loss of $147,486,000 on the 1997 sale of the $150 million
receivable. Respondent also disallowed SMP’s claimed short-term
capital loss of $11,647,367 and long-term capital loss of
$62,237,061 on the sales of its interests in Corona. Respondent
determined instead that SMP recognized long-term capital gain of
$2,514,000 on the sale of the receivable, and short-term capital
gain of $198,941 and long-term capital gain of $1,034,809 on the
sales of its interests in Corona.74
Respondent determined that, pursuant to section 6662(h), the
40-percent accuracy-related penalty for gross valuation
74
Respondent computed SMP’s short-term capital gain (STCG)
and long-term capital gain (LTCG) from the sales of its interests
in Corona as follows:
STCG LTCG Total
Amount realized ($248,700 cash +
$1,220,050 note) $236,763 $1,231,987 $1,468,750
Adjusted basis (($250,000 cash +
$0 basis in note)
(94-percent interest)) 37,822 197,178 235,000
Gain on sale of Corona interest 198,941 1,034,809 1,233,750
- 104 -
misstatements applies to all of SMP’s partnership adjustments for
1997. Alternatively, respondent determined that, pursuant to
section 6662(a), the 20-percent accuracy-related penalty applies
on the grounds of negligence or disregard of rules and
regulations, a substantial understatement of income tax, or a
substantial valuation misstatement.
For 1998, respondent disallowed SMP’s claimed long-term
capital loss of $80,190,418 on the 1998 sale of the $81 million
receivable. Respondent determined instead that SMP recognized
long-term capital gain of $1.4 million on this sale.75
Respondent determined that, pursuant to section 6662(h), the 40-
percent accuracy-related penalty for gross valuation
misstatements applies to all of SMP’s partnership adjustments for
1998 (except for the aforementioned long-term capital gain
adjustment of $211,407). Alternatively, respondent determined
that, pursuant to section 6662(a), the 20-percent accuracy-
related penalty applies on the grounds of negligence or disregard
of rules and regulations, a substantial understatement of income
tax, or a substantial valuation misstatement.
B. Corona
On January 24, 2003, respondent issued an FPAA to Corona for
its taxable year ended December 31, 1997. Respondent disallowed
75
Respondent also determined that $211,407 of pass-through
gain that SMP reported on Sch. D of its partnership tax return
for 1998 should have been passed through to its members.
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Corona’s claimed long-term capital loss of $78,768,955 on the
sale of the $79 million receivable. Respondent determined
instead that Corona recognized a long-term capital gain of
$1,144,000 on this sale. Respondent determined that, pursuant to
section 6662(h), the 40-percent accuracy-related penalty for
gross valuation misstatements applies to all of Corona’s
partnership adjustments for 1997. Alternatively, respondent
determined that, pursuant to section 6662(a), the 20-percent
accuracy-related penalty applies on the grounds of negligence or
disregard of rules and regulations, a substantial understatement
of income tax, or a substantial valuation misstatement.
OPINION
As becomes apparent from the foregoing findings, the facts
in these cases are a virtual labyrinth. At the heart of the
labyrinth, where one might expect to find, if not a Minotaur,
then at least an old movie lion, we find high-basis, low-value
assets (said to have spawned startling losses) and some B-grade
films. To help thread the labyrinth, we briefly recap some
salient facts.
In 1996, Mr. Lerner was involved with the Safari
consortium’s failed bid to acquire MGM. Subsequently, Mr. Lerner
was contacted by CDR’s representative, Rene Claude Jouannet, who
had been assigned the task of selling the assets in MGM’s parent
company, MGM Group Holdings (later renamed SMHC). Messrs. Lerner
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and Jouannet struck a deal: Rockport Capital, Mr. Lerner,
Generale Bank, and CLIS would join together as purported members
of a limited liability company, SMP, which elected to be treated
as a partnership for Federal tax purposes. In exchange for
common interests in SMP, Rockport Capital and Mr. Lerner would
contribute $20 million cash or marketable securities. In
exchange for preferred interests in SMP, Generale Bank would
contribute its $974 million in receivables from SMHC, and CLIS
would contribute its $79 million receivable and SMHC stock. At
the time of these contributions, the receivables and SMHC stock
had purported bases totaling over $1.7 billion. These
properties, however, had little, if any, value.
As part of the transaction between CDR and the Ackerman
group, CDR negotiated a side letter agreement in which Rockport
Capital agreed to purchase Generale Bank’s and CLIS’s (sometimes,
collectively, the banks) preferred interests in SMP upon written
notice from those entities (put rights). The banks’ put rights
were exercisable during a 1-year period beginning December 31,
1996. The deal closed on December 11, 1996. Less than 3 weeks
later, on December 31, 1996 (the first day of the 1-year put
period), the banks exercised their put rights. Somerville S
Trust (standing in the shoes of Rockport Capital) purchased the
banks’ preferred interests in SMP.
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In 1997 and again in 1998, SMP sold to TroMetro portions of
the $974 million in receivables that Generale Bank had
contributed. SMP reported a $147,486,000 loss on the sale of the
$150 million receivable in 1997 and a $80,190,418 loss on the
sale of the $81 million receivable in 1998.76 These losses
flowed through to Somerville S Trust under the partnership tax
rules. Also in 1997, Mr. Lerner negotiated a deal with Imperial,
wherein SMP contributed the $79 million receivable to a new
limited liability company, Corona, which also elected partnership
tax treatment, and SMP then sold 79.2- and 14.65-percent
membership interests in Corona to Imperial.77 The transactions
produced losses for SMP of $62,237,061, and $11,647,367,
respectively, which flowed through to Somerville S Trust. In
1997, Corona sold the $79 million receivable to TroMetro,
generating a $78,768,955 loss, $74,671,378 of which flowed
76
TroMetro paid $230,000 and gave a $2,284,000 note in
exchange for the $150 million receivable. TroMetro paid $150,000
and gave a $1.25 million note in exchange for the $81 million
receivable. TroMetro paid $397,166 principal and $159,880.35
interest on the $2,284,000 note. No additional amounts were paid
on these notes.
77
Imperial paid $212,000 cash and gave a $1.04 million note
for the 79.2-percent membership interest and paid $36,700 cash
and increased its note to $1,220,050 for the 14.65-percent
membership interest.
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through to Imperial and $4,097,577 of which flowed through to SMP
and then to Somerville S Trust.78
The core issue is whether respondent has properly
disallowed these claimed losses. Petitioner’s claims to the
losses rest on the partnership tax rules, which are contained in
subchapter K (secs. 701 to 777) of the Code. Although the
operation of these rules is not directly in dispute, the effects
of these rules permeate the transactions in question and inform
our analysis. We start with an overview of these rules.
I. Partnership Tax Rules
A. In General
A partnership is not subject to Federal income tax at the
partnership level; instead, persons carrying on business as
partners are liable for income tax only in their separate or
individual capacities. Sec. 701; see secs. 702, 704 (providing
rules for determining partners’ distributive shares), sec. 703
(providing rules for computing taxable income of a partnership).
A partner must take into account his or her distributive share of
each item of partnership income, gain, loss, deduction, and
78
Mr. van Merkensteijn paid $120,000 and gave a $1,024,000
note (revised to $1.180 million) in exchange for the $79 million
receivable. Mr. van Merkensteijn paid $205,191 principal and
$82,600 interest on this note. He paid no additional amounts.
Imperial paid $14,595,652 as a fee for the tax losses that it
received from the Corona transaction.
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credit.79 Sec. 702(a); Vecchio v. Commissioner, 103 T.C. 170,
185 (1994). A partner’s distributive share of partnership loss
(including capital loss) is allowed only to the extent of the
partner’s adjusted basis in his or her partnership interest at
the end of the partnership taxable year in which the loss
occurred. Sec. 704(d); Oden v. Commissioner, T.C. Memo. 1981-
184, affd. without published opinion 679 F.2d 885 (4th Cir.
1982).
Generally, when property is contributed to a partnership in
exchange for a partnership interest, neither the partnership nor
any of its partners recognize gain or loss. Sec. 721(a). The
partner’s basis in a partnership interest acquired by a
contribution of property to the partnership is the amount of any
money contributed plus the contributing partner’s adjusted basis
in other contributed property at the time of the contribution
(“outside basis”). Sec. 722. Similarly, the partnership’s basis
in property contributed to a partnership by a partner is the
79
A partner’s distributive share is generally determined by
reference to the partnership agreement; however, if the
allocations in the partnership do not have “substantial economic
effect” (as determined under sec. 704 and the regulations), those
allocations are disregarded. See Estate of Ballantyne v.
Commissioner, 341 F.3d 802, 805 (8th Cir. 2003), affg. T.C. Memo.
2002-160. If the partnership agreement provides no allocation or
the allocations provided therein lack substantial economic
effect, a partner’s distributive share of partnership items shall
be determined in accordance with the partner’s interest in the
partnership (determined by taking into account all facts and
circumstances). Sec. 704(b).
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contributing partner’s adjusted basis in the property at the time
of the contribution. Sec. 723. Each partner’s proportionate
share of the partnership’s basis in its property is referred to
as “inside basis.” Cf. Gindes v. United States, 228 Ct. Cl. 632,
661 F.2d 194, 197 n.9 (1981).
Under section 704(c)(1)(A), items of income, gain, loss, and
deduction with respect to property contributed to a partnership
by a partner are specially allocated among the partners so as to
take account of any variation between the partnership’s basis in
the contributed property and its fair market value at the time of
contribution (this variation is sometimes referred to as built-in
gain or loss). See sec. 1.704-3, Income Tax Regs. (providing
special rules for allocating items between noncontributing and
contributing partners). This rule is generally designed to
prevent transfers of built-in gain or loss from the contributing
partner to the other partners.
If the contributing partner transfers his partnership
interest, built-in gain or loss must be allocated to the
transferee partner as it would have been allocated to the
transferor partner. Sec. 1.704-3(a)(7), Income Tax Regs.
If the partnership has made a one-time election under section
754, adjustments are made with respect to the transferee
partner’s inside basis, essentially so as to approximate the
result of a direct purchase of the property by the transferee
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partner.80 See H. Conf. Rept. 108-755, at 401 (2004).
Consequently, if the partnership has made a section 754 election,
the transferee partner is not allocated any existing built-in
gain or loss in the property. On the other hand, if the section
754 election is not made, inside basis in partnership property is
not adjusted upon the transfer of a partnership interest. Sec.
743(a). Consequently, in the absence of a section 754 election,
the transferee partner may be allocated the built-in gain or loss
when the partnership disposes of the property.81
80
More exactly, under sec. 743(b), in the case of a
transfer of a partnership interest by sale or exchange: (a) The
partnership increases its basis in partnership property by the
same amount as the transferee partner’s outside basis in his
partnership interest exceeds his inside basis in partnership
property; and (b) the partnership decreases its basis in
partnership property by the same amount as the transferee
partner’s inside basis in partnership property exceeds the
transferee partner’s outside basis in his partnership interest.
In the case of property contributed to the partnership by a
partner, the sec. 704(c) rules apply in determining the
transferee partner’s inside basis in partnership property. Sec.
743(b) (flush language). The increase and decrease in the
partnership’s basis constitutes an adjustment with respect to the
transferee partner only. Sec. 743(b) (flush language).
81
Recent legislation has limited the ability to transfer
losses among partners. In the American Jobs Creation Act of 2004
(AJCA 2004), Pub. L. 108-357, sec. 833(a) and (b), 118 Stat.
1589, Congress amended secs. 704(c) and 743 effective for
contributions and transfers after the date of enactment. With
respect to sec. 704(c), AJCA 2004 sec. 833(a) provides that the
built-in loss in contributed property is taken into account only
in determining the amount of items allocated to the contributing
partner; in determining the amount of items allocated to other
partners, the partnership’s basis in partnership property shall
be treated as being equal to its fair market value at the time of
contribution. With respect to sec. 743, AJCA 2004 sec. 833(b)
(continued...)
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B. Claimed Application of Partnership Tax Rules
Petitioner’s position is that when the banks contributed the
high-basis, low-value properties (the receivables and SMHC stock)
to SMP in exchange for preferred interests, the transaction was a
nontaxable event under section 721; SMP received bases equal to
the banks’ bases in the contributed properties. When the banks
sold their preferred interests to Somerville S Trust, their
inside basis in the contributed parties went to Somerville S
Trust, as a transferee partner, pursuant to section 704(c).
Because SMP made no election under section 754, Somerville S
Trust’s inside basis in the contributed properties was not
adjusted. When SMP subsequently sold portions of the $974
million in receivables from Generale Bank, Somerville S Trust was
allocated the losses on those sales.
The Ackerman group created a nearly identical scenario when
SMP contributed the $79 million receivable to Corona in exchange
for a membership interest. Petitioner’s position is that SMP
received an outside basis in Corona equal to SMP’s basis in the
$79 million receivable. SMP then sold portions of its Corona
81
(...continued)
provides that, in the case of a sale or exchange of a partnership
interest, the adjustment to partnership basis is mandatory if the
partnership has a “substantial built-in loss” immediately after
the sale or exchange. There is a substantial built-in loss if
the partnership’s basis in partnership property exceeds by more
than $250,000 the fair market value of such property. AJCA 2004
sec. 833(b)(3). Because of their effective date, these new rules
do not apply to the transactions at issue in the instant cases.
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membership interest to Imperial at a substantial loss. Under
section 704(c), Imperial succeeded to SMP’s inside basis in the
$79 million receivable. When the $79 million receivable was sold
to TroMetro, Imperial (and to some extent SMP) was allocated the
substantial loss from that sale, effectively duplicating the loss
that SMP had realized on the sales of its Corona membership
interest.
II. Burden of Proof
Generally, in actions to redetermine respondent’s
partnership-level adjustments in an FPAA, as in other actions in
this Court, the burden of proof is on petitioner, unless
otherwise provided by statute or determined by the Court. Rules
142(a), 240(a); Saba Pship. v. Commissioner, T.C. Memo. 2003-31.
Respondent has pleaded new matter in his amendments to
answer, filed April 23, 2004; specifically, that SMP’s reported
tax basis in its SMHC stock should be adjusted to zero and that
SMP’s sales of receivables to TroMetro should be treated as sales
of an option to acquire an equity interest in SMHC or its
successor. Under Rule 142(a), respondent bears the burden of
proof with respect to this new matter.82
82
Petitioner contends that respondent’s pretrial memorandum
raises certain issues, generally relating to the bona fides of
the $79 million receivable, that constitute new matter. We
disagree. The issues in question relate to the adjustments
determined in the FPAAs.
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In certain cases, the burden of proof shall be on the
Commissioner if, in any court proceeding, the taxpayer introduces
credible evidence with respect to any factual issue relevant to
ascertaining the liability of the taxpayer for any tax imposed by
subtitle A or B of the Code. Sec. 7491(a)(1).83 Nonetheless, in
the case of a partnership, corporation, or trust, section
7491(a)(1) applies only if the taxpayer meets the net worth
limitations that apply for awarding attorney’s fees pursuant to
section 7430; i.e., a corporation, trust, or partnership whose
net worth exceeds $7 million is ineligible for the benefits of
section 7491(a)(1). Secs. 7491(a)(2)(C), 7430(c)(4)(A)(ii); 28
U.S.C. sec. 2412(d)(1)(B) and (2)(B) (as in effect on Oct. 22,
1986). Petitioner has not alleged, and the record does not
establish, that SMP or Corona meets these requirements.
Accordingly, section 7491(a) does not apply. See H. Conf. Rept.
105-599, at 240, 242 (1998), 1998-3 C.B. 747, 994, 996 (stating
that the taxpayer has the burden of proving it meets the
requirements in sec. 7491(a)(2)).
Except for the items raised as new matter in respondent’s
amendment to answer, we conclude that petitioner bears the burden
83
Sec. 7491 was added to the Code in the Internal Revenue
Service Restructuring and Reform Act of 1998, Pub. L. 105-206,
sec. 3001, 112 Stat. 726, and is effective with respect to court
proceedings arising in connection with examinations commencing
after July 22, 1998. The parties agree that the examination in
these cases commenced after July 22, 1998.
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of proof with respect to the factual issues in these cases. In
any event, we do not resolve any of the issues solely on the
basis of placement of the burden of proof. Instead, we decide
the issues on the basis of the preponderance of the evidence.
III. Economic Substance
A. Parties’ Contentions
Respondent does not dispute the operation of the
partnership basis and loss provisions in these cases. Respondent
also does not challenge whether SMP and Corona were formed as
bona fide partnerships or whether those entities should be
respected for Federal tax purposes. Cf. ASA Investerings Pship.
v. Commissioner, 201 F.3d 505 (D.C. Cir. 2000), affg. T.C. Memo.
1998-305. Instead, respondent contends that substance over form
principles, including the step transaction doctrine, require the
various transactions at issue to be recast as direct sales of the
high-basis, low-value receivables and SMHC stock (thereby
negating any transfers of built-in losses among purported
partners).
More particularly, respondent contends that after the
Ackerman group failed to acquire New MGM, Mr. Lerner developed a
plan to acquire the tax benefits associated with the debt and
stock of MGM Group Holdings. Pursuant to this plan, Generale
Bank and CLIS would contribute the high-basis, low-value
receivables and SMHC stock to SMP in exchange for preferred
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interests, followed by a sale of the preferred interests to Mr.
Ackerman’s entities. Because the only purpose for the
transaction was tax reduction, respondent argues, “Generale Bank
and CLIS should be disregarded as members of SMP and their
‘contributions’ to SMP followed by their ‘sale’ of the preferred
membership interests to Rockport should be recast as a direct
sale of the high basis/low value assets to Rockport for $10
million.”84
Petitioner insists that the form of the transaction in
question should be respected. Petitioner argues that there were
valid business reasons, apart from tax reasons, for the
transaction. Petitioner argues that the Ackerman group and the
banks entered into the transaction as part of a plan to partner
in a film distribution business. Petitioner contends that the
partnership form was chosen for valid business reasons, because
it was the only vehicle flexible enough to accommodate these
84
Respondent also argues that the so-called partnership
antiabuse regulation, sec. 1.701-2, Income Tax Regs., applies to
recast the banks’ contributions of the high-basis, low-value
receivables and SMHC stock as direct sales of those assets to
Rockport Capital (or its affiliate Somerville S Trust). In
general, the antiabuse regulation permits the Commissioner to
recast partnership transactions that make inappropriate use of
the partnership tax rules. Petitioner contends that the
antiabuse regulation is invalid. Because we decide these cases
utilizing existing judicial doctrines, we need not and do not
decide whether the partnership antiabuse regulation is valid or
whether it applies to any of the transactions in these cases.
Cf. Jade Trading, LLC v. United States, 60 Fed. Cl. 558, 562
(2004).
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business objectives, as well as the complexities of the
transaction itself.
B. General Legal Principles
It is well established that the “incidence of taxation
depends upon the substance of a transaction” rather than its mere
form. Commissioner v. Court Holding Co., 324 U.S. 331, 334
(1945). In determining the substance of a transaction for
Federal tax purposes, we are guided by the foundational
principles that the U.S. Supreme Court stated in Gregory v.
Helvering, 293 U.S. 465, 469 (1935): “The legal right of a
taxpayer to decrease the amount of what otherwise would be his
taxes, or altogether avoid them, by means which the law permits,
cannot be doubted. * * * But the question for determination is
whether what was done, apart from the tax motive, was the thing
which the statute intended.” See also Knetsch v. United States,
364 U.S. 361, 365 (1960); Commissioner v. Court Holding Co.,
supra at 334.
Under Gregory v. Helvering, supra, “it is immaterial whether
we are talking about ‘substantial economic reality,’ ‘substance
over form,’ ‘sham’ transactions, or the like; rather the question
is whether under the statute and regulations here involved the
transaction affects a beneficial interest other than the
reduction of taxes.” United States v. Ingredient Tech. Corp.,
698 F.2d 88, 94 (2d Cir. 1983).
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The mere fact that the parties to the transaction might take
favorable tax consequences into account is not of itself fatal to
the transaction. Frank Lyon Co. v. United States, 435 U.S. 561,
580 (1978). As Judge Learned Hand observed in Chisholm v.
Commissioner, 79 F.2d 14, 15 (2d Cir. 1935), revg. 29 B.T.A. 1334
(1934):
a man’s motive to avoid taxation will not establish his
liability if the transaction does not do so without it.
It is true that * * * [the Supreme Court] has at times
shown itself indisposed to assist such efforts, and has
spoken of them disparagingly; but it has never, so far
as we can find, made that purpose the basis of
liability; and it has often said that it could not be
such. The question always is whether the transaction
under scrutiny is in fact what it appears to be in
form; a marriage may be a joke; a contract may be
intended only to deceive others; an agreement may have
a collateral defeasance. In such cases the transaction
as a whole is different from its appearance. True, it
is always the intent that controls; and we need not for
this occasion press the difference between intent and
purpose. We may assume that purpose may be the
touchstone, but the purpose which counts is one which
defeats or contradicts the apparent transaction, not
the purpose to escape taxation which the apparent, but
not the whole, transaction would realize. * * *
[Citations omitted; emphasis added.]
In applying these general legal principles, courts have
developed a number of more particularized judicial doctrines
including: The sham transaction doctrine, the substance over
form doctrine, the step transaction doctrine, and the economic
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substance doctrine. In the instant cases, we focus on the
economic substance doctrine.85
“An activity will not provide the basis for deductions if it
lacks economic substance.” Ferguson v. Commissioner, 29 F.3d 98,
101 (2d Cir. 1994), affg. Peat Oil & Gas Associates v.
Commissioner, 100 T.C. 271 (1993). In general, transactions lack
economic substance if they “‘can not with reason be said to have
purpose, substance, or utility apart from their anticipated tax
consequences.’” Lee v. Commissioner, 155 F.3d 584, 586 (2d Cir.
1998) (quoting Goldstein v. Commissioner, 364 F.2d 734, 740 (2d
Cir. 1966), affg. 44 T.C. 284 (1965)), affg. in part and
remanding in part on another ground T.C. Memo. 1997-172.86
In Frank Lyon Co. v. United States, supra at 583-584, the
U.S. Supreme Court held that a transaction has economic substance
if “there is a genuine multiple-party transaction with economic
substance which is compelled or encouraged by business or
regulatory realities, is imbued with tax-independent
85
In a separate section infra, we discuss the application
of the step transaction doctrine.
86
In Jacobson v. Commissioner, 915 F.2d 832, 837 (2d Cir.
1990), affg. in part, revg. in part, and remanding T.C. Memo.
1988-341, the Court of Appeals for the Second Circuit stated that
a transaction is devoid of economic substance “‘if it is
fictitious or if it has no business purpose or economic effect
other than the creation of tax deductions.’” (quoting DeMartino
v. Commissioner, 862 F.2d 400, 406 (2d Cir. 1988), affg. 88 T.C.
583 (1987)); see also Ferguson v. Commissioner, 29 F.3d 98, 101
(2d Cir. 1994), affg. 100 T.C. 271 (1993).
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considerations, and is not shaped solely by tax-avoidance
features that have meaningless labels attached”. See Newman v.
Commissioner, 902 F.2d 159, 163-164 (2d Cir. 1990) (analyzing
each of these factors), vacating and remanding T.C. Memo. 1988-
547. Courts have construed this language to involve a
consideration of two related factors, the subjective business
purpose and objective economic substance of the transaction.
See, e.g., Lerman v. Commissioner, 939 F.2d 44, 53-54 (3d Cir.
1991), affg. Fox v. Commissioner, T.C. Memo. 1988-570; Casebeer
v. Commissioner, 909 F.2d 1360, 1363 (9th Cir. 1990), affg. in
part, revg. in part, and remanding on another ground 89 T.C. 1229
(1987); Kirchman v. Commissioner, 862 F.2d 1486, 1492 (11th Cir.
1989), affg. Glass v. Commissioner, 87 T.C. 1087 (1986); Rice’s
Toyota World, Inc. v. Commissioner, 752 F.2d 89, 91, 94 (4th Cir.
1985), affg. in part, revg. in part, and remanding on another
ground 81 T.C. 184 (1983); Winn-Dixie Stores, Inc. & Subs. v.
Commissioner, 113 T.C. 254, 279-280 (1999), affd. 254 F.3d 1313
(11th Cir. 2001).
C. Summary of Conclusions
On the basis of all the evidence in the record, we conclude
that the transaction whereby the banks purported to become
partners in SMP, only to exit some 3 weeks later, was not in
substance what it appeared to be in form. The exclusive purpose
of this apparent transaction, we conclude, was to transfer to the
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Ackerman group enormous tax attributes associated with the banks’
high-basis, low-value receivables and SMHC stock. To that end,
the banks purported to join SMP as partners, contributing these
receivables and stock.
To transfer the tax attributes, however, the banks had to do
more than enter into the partnership; they also had to exit the
partnership, leaving their receivables behind. And so they did,
as soon as possible, by “putting” their partnership interests to
one of the Ackerman group members. In essence, then, the parties
purposed that the banks should join the partnership so as to
withdraw from it. It is this schizophrenic purpose which
“defeats or contradicts the apparent transaction”. Chisholm v.
Commissioner, 79 F.2d at 15.
We conclude that, in substance, the banks did not become
partners of SMP; rather, they transferred their high-basis, low-
value receivables and SMHC stock, along with whatever associated
tax attributes might survive the transfer, to the Ackerman group
for $10 million. In the following discussion, we describe in
detail the basis for our conclusions, focusing on the purposes
and economic realities of the transactions in question.
D. Subjective Business Purpose
Under the first factor of the economic substance doctrine,
subjective business purpose, we must determine whether there was
a business purpose for engaging in the transaction other than tax
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avoidance. See Bail Bonds by Marvin Nelson, Inc. v.
Commissioner, 820 F.2d 1543, 1549 (9th Cir. 1987), affg. T.C.
Memo. 1986-23.
Petitioner contends that both the banks and the Ackerman
group had legitimate, nontax reasons for CDR, Generale Bank, and
CLIS to become partners. More particularly, petitioner claims
that the banks were interested in partnering with Messrs. Lerner
and Ackerman in a “film distribution” business based in the U.S.
Petitioner claims that the 65 film rights that the banks
contributed to SMHC were valuable assets and were contributed to
SMHC as a viable “starter” library for a larger library that the
Ackerman group envisioned. Petitioner contends that he and Mr.
Ackerman assumed that the banks wanted to continue this
relationship into the future and were surprised when the banks
exercised their put rights and departed SMP about 3 weeks after
purporting to become partners.
1. Banks’ Purposes
At the outset, we note the dearth of direct evidence as to
the banks’ purposes in entering into the transactions with the
Ackerman group. In asserting that the banks were interested in
partnering with Messrs. Lerner and Ackerman in a U.S.-based film
distribution business, petitioner relies exclusively on his own
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self-serving testimony.87 Except for the testimony of Sean
Geary, CDR’s counsel in the transaction with the Ackerman group,
petitioner offered no testimony from any representative on the
CDR side of the transaction. As we explain in more detail below,
Mr. Geary’s testimony, in most respects, contradicts petitioner’s
assertions. In pertinent part, Mr. Geary testified that, to his
knowledge, the banks had no intent to produce or distribute film
products with the Ackerman group.
Petitioner claims, however, that the banks’ long-term
intentions were known only by one individual, Mr. Jouannet, who
is deceased. Petitioner claims that the banks’ “intentions went
to the grave with Rene Claude Jouannet”.88 We are unpersuaded
87
Mr. Ackerman testified to his understanding of the deal
with CDR; however, his testimony was based on what Mr. Lerner had
told him. Mr. Ackerman had no discussions with Mr. Jouannet or
any other representative of CDR, and the documents indicate that
he had no involvement in the negotiation and drafting process.
88
Petitioner sought to introduce a letter from Mr. Jouannet
to Mr. Lerner written in 1997, which discussed the transaction
with the Ackerman group. Because that letter is subject to an
evidentiary objection, we discuss that letter infra.
Petitioner also points to a Feb. 27, 1997, letter that Mr.
Jouannet sent to Danny Rosett, Senior Vice President, Financial
Operations, at New MGM regarding SMHC’s financial statements.
(This letter was purportedly sent in response to a Feb. 18, 1997,
memorandum from Mr. Rosett. Mr. Rosett’s memorandum is not a
part of the record, and we have no basis for determining its
content.) In his letter, Mr. Jouannet states:
Furthermore the description of the disposal by CLIS of
the Company as a sale is not exactly what occurred.
What exactly happened was an Exchange and Contribution
(continued...)
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that other knowledgeable witnesses could not have been found
among the living. In 1996, Credit Lyonnais, CDR, Generale Bank,
and CLIS appear to have been very large banking institutions. It
also appears that Credit Lyonnais and CDR were quasi-governmental
entities which were subject to considerable oversight by the
French government. It seems implausible that all direct
88
(...continued)
Agreement on December 11, 1996, whereby among other
things CLIS contributed to an unrelated company formed
by Rockport Capital Inc. and called Santa Monica
Pictures LLC all its stock in Santa Monica Holdings
(and the $79.9 M$ debt of Santa Monica Holdings) in
exchange for 36.76% of the Preferred Interests of Santa
Monica Pictures LLC.
On the basis of this letter, petitioner contends that it is clear
that Mr. Jouannet believed that CLIS had not sold SMHC or the $79
million receivable but had entered into a partnership arrangement
with the Ackerman group. We cannot agree.
The letter itself merely discusses the form that the
transaction took, i.e., that CLIS entered into an exchange and
contribution agreement with SMP and contributed its SMHC stock
and the $79 million receivable. It does not address the more
cogent question of whether there was an understanding that CLIS
would exercise its put rights on Dec. 31, 1996. Moreover, in the
absence of some corroboration, we must question the letter’s
reliability. As discussed infra, we are not persuaded that Mr.
Jouannet’s interests, and those of CDR, were necessarily adverse
to the interests of the Ackerman group and SMP, at least insofar
as the tax characterization of the transaction was concerned.
Further, Mr. Jouannet, as a representative of CDR, was bound by
the confidentiality provision of the LLC agreement; any statement
to New MGM confirming a sale by CLIS of SMHC might be construed
as a breach of that agreement. (New MGM was not a party to the
CDR transaction, and any disclosure to that entity was not
covered under any of the exceptions in the confidentiality
provision.) Finally, Mr. Jouannet’s statement, insofar as it
might be construed to favor petitioner’s position, would appear
inconsistent with the testimony of Mr. Geary, discussed infra.
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knowledge of the particulars of the transaction with the Ackerman
group would have resided in one person, Mr. Jouannet. Indeed,
representatives of Generale Bank and CLIS executed the various
agreements with the Ackerman group. These representatives
included Bruno Hurstel of CDR, Richard Devin, chairman of CLIS,
and members of the executive board of Generale Bank.89
Petitioner called none of these individuals to testify as to the
banks’ intentions in the transaction with the Ackerman group. We
infer that such testimony would have been unfavorable to
petitioner. See Wichita Terminal Elevator Co. v. Commissioner, 6
T.C. 1158, 1165 (1946), affd. 162 F.2d 513 (10th Cir. 1947).
Notwithstanding these evidentiary gaps, there is a great
deal of other evidence in the record which shows that the banks
did not intend to enter into any film distribution business with
Messrs. Lerner and Ackerman.
a. Banks’ Prior History With Film Business
The question arises why the banks in 1996 would have wanted
to pursue a film business with anyone, much less with Messrs.
Lerner and Ackerman. The Credit Lyonnais group’s prior
experiences in the film business had not been positive.
Beginning in 1991, the Credit Lyonnais group had immersed itself
in the fortunes of MGM; it proved to be a financial disaster.
89
Mr. Hurstel was the secretary and treasurer of SMHC, was
on the board of directors of Epic Productions, and was a
representative of CDR.
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Because of its loans and advances to MGM, the Credit Lyonnais
group was unable to extricate itself from that company’s
financial perils. Ultimately, the Credit Lyonnais group was
forced to wrest control of MGM from Mr. Parretti and foreclose on
the stock interests in MGM. From that point until 1996, the
Credit Lyonnais group had to maintain a constant supervisory
presence at MGM in an effort to right that company and recoup its
loans and advances. To do that, however, the Credit Lyonnais
group had to continue advancing MGM significant amounts to keep
it alive. The 1993 restructuring and the infusion of a new
management team helped MGM to recover; however, by the end of
1995, the Credit Lyonnais group was finished with the film
business and MGM. The Credit Lyonnais group had lent the MGM
companies upwards of $2 billion. It recouped a portion of that
amount on the sale of New MGM in 1996; however, more than $1
billion in outstanding indebtedness remained owing from MGM Group
Holdings. The Credit Lyonnais group had little or no hope of
recovering anything on this amount.
In 1995 and 1996, the Credit Lyonnais group was financially
distressed. Upon the intervention of the French government, CDR
was formed for the specific purpose of liquidating the Credit
Lyonnais group’s “bad” investments and loans, particularly its
investments and loans in the filmed entertainment area. These
“bad” assets included MGM, MGM Holdings, and MGM Group Holdings,
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and the loans and advances to those companies. CDR’s goal was to
realize whatever amount it could on those “bad” assets. Indeed,
with respect to MGM Group Holdings, CDR’s representative, Mr.
Jouannet, was assigned the task of realizing whatever value he
could in that company, as quickly as possible. Seemingly, this
objective would not be realized if Generale Bank and CLIS were
locked up in a film distribution business with the Ackerman
group.
The film rights that the banks ultimately contributed to
SMHC were culled from the 1,000-film CDR library. John Peters of
Epic Productions testified that these CDR films were acquired
from distressed companies to which Credit Lyonnais had lent
money. The films were acquired in numerous workouts,
bankruptcies, or other similar proceedings. Credit Lyonnais had
turned the films over to Epic Productions and Mr. Peters to
manage; however, by late 1995, Credit Lyonnais instructed Epic
Productions to begin planning the liquidation of the CDR library.
The whole focus of Epic Productions’ business operations became
“the ultimate liquidation of this 1,000 film plus library.” Mr.
Peters testified that Credit Lyonnais did not intend to pursue a
film distribution business with respect to these films. On the
contrary, its overall goal was to liquidate the film assets that
it had acquired.
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b. Banks’ Regulatory Environment
In 1996, the regulatory environment was not conducive to the
banks’ investing in a partnership for film distribution. A
number of witnesses, including Mr. Geary and Bahman Naraghi (an
employee of Credit Lyonnais), testified that under U.S. banking
laws, the Credit Lyonnais group faced a 5-year deadline to divest
itself of its nonbanking, MGM entertainment assets. An October
4, 1994, memorandum prepared by Deloitte & Touche for Credit
Lyonnais regarding MGM states that Credit Lyonnais’s business
strategy with respect to MGM “must take into account CL’s
obligation to have sold its stake in MGM no later than May 7,
1997, due to the American regulations concerning investments in
non-financial enterprises by banks.”90 Presumably, this same
deadline (May 7, 1997) or a similar 5-year deadline would apply
to any supposed film venture with the Ackerman group.
c. Why the Ackerman Group?
We further question what would motivate the banks to enter
into a film distribution business with Messrs. Lerner and
Ackerman. Neither of those individuals had any experience in
running a film distribution business. Mr. Lerner was a tax
lawyer; nothing in his background reveals any special credentials
in film distribution. Mr. Ackerman was involved in a number of
90
On the basis of this evidence, it would appear that the
5-year period commenced May 7, 1992, when Credit Lyonnais
acquired MGM-Pathe as part of a foreclosure on outstanding debts.
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financing transactions involving “major” motion picture
companies; however, Mr. Ackerman gave no indication that his
experience in financing extended to the particulars of running a
film distribution business. Plus, the record suggests that the
banks had misgivings about the Ackerman group’s economic
underpinnings.91
d. Inattention to Film Rights in Negotiations
Although the Ackerman group and CDR exchanged numerous
documents over the course of their negotiations, we find scant
reference to any film distribution business or film rights.
There is no evidence that the parties actively negotiated over
the particulars of the purported film business or the specific
film rights that would be contributed to SMHC. The first and
only reference to a purported film distribution business appears
in the drafts of the SMP LLC agreement that Shearman & Sterling
drafted on Rockport Capital’s behalf. Those drafts, including
the final draft, describe the purpose for which SMP was formed as
being, inter alia, to produce and distribute filmed entertainment
products. With respect to this provision, Mr. Geary testified
that, to his knowledge, the banks had no intent to produce or
distribute film products through the transaction with the
91
Mr. Geary testified that, during the negotiations with
the Ackerman group, Mr. Jouannet and other individuals in the
Credit Lyonnais group began to worry “whether Lerner and his
people were good for” the $5 million put price.
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Ackerman group. He testified that he did not discuss this
provision with his client, and that in any event CDR would not
have asked to remove this provision because “we didn’t care too
much what was in here.”
e. Selection of EBD Film Rights
Mr. Peters testified that in 1996, during Epic Productions’
efforts to sell the CDR library, someone at either Credit
Lyonnais or EBD instructed him to find some low-value films and
development projects within the CDR library. The idea was to
find some titles and development projects that in Mr. Peters’
view had very little value, so that removal of those rights would
have no significant impact on the CDR library’s overall value.
For example, Mr. Peters testified that he selected films with
rights that were about to expire in the near future (e.g., in 1
or 2 years) and predominantly films that were low-budget,
exploitation genre films. In addition, the totality of rights to
the film assets was not removed from the CDR library; instead,
only some subgroup (e.g., domestic home video or domestic
cassette rights) was removed. Ultimately, Mr. Peters selected
the “U.S. Video Film Rights” to the 65 film titles and the rights
to the 26 development projects listed in Schedule 1.6(b) of the
exchange and contribution agreement.
On the basis of Mr. Peters’ testimony, it is reasonable to
conclude that the Credit Lyonnais group had no intentions of
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contributing a viable “starter” film library to SMHC or to
partner in a film distribution business with respect to those
assets or the CDR library, generally. Instead, the selection
process that Mr. Peters described strongly suggests that CLIS
contributed the film assets to SMHC for a far different
purpose.92
f. Conclusion
In light of these various considerations, we are not
persuaded that the banks had any intention of partnering with
Messrs. Lerner and Ackerman in a film distribution business. To
the contrary, it is clear that the Credit Lyonnais group desired
to end its failed relationship with its distressed filmed
entertainment assets and companies. CDR’s role as Generale
Bank’s and CLIS’s representative in the transaction with the
Ackerman group reflects the banks’ interest in liquidating their
receivables and SMHC stock.
2. Ackerman Group’s Purposes
Petitioner claims that he and Mr. Ackerman wanted to join
with the banks in a film distribution business and understood
92
Petitioner contends that “Mr. Peters’ testimony and
demeanor suggested an effort to hurt Petitioners” and questions
the accuracy and good faith of that testimony. Apart from these
general assertions, petitioner provides no basis for concluding
that Mr. Peters fabricated his testimony. Mr. Peters was subject
to petitioner’s cross-examination; nothing in his testimony
suggested any bad faith or fabrication. Despite petitioner’s
protestations, we find Mr. Peters’s testimony credible, thorough,
and very persuasive on the relevant points.
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that the banks reciprocated this interest. Petitioner contends
that he and Mr. Ackerman assumed that the banks wanted to
continue this relationship into the future. Petitioner testified
that to their considerable surprise, the banks elected instead to
exercise their put option.
Petitioner’s claimed understanding of the deal with CDR is
based entirely on his testimony.93 We find Mr. Lerner’s
testimony self-serving, contrived, and ultimately not credible.
The bulk of the evidence in the record contradicts petitioner’s
testimony and his purported understanding.
a. Mr. Lerner’s and Mr. Ackerman’s Backgrounds
As previously noted, as far as the record reveals, Messrs.
Lerner and Ackerman were tax and financial professionals with no
experience in running a film distribution business. Cf.
Ferguson v. Commissioner, 29 F.3d at 102 (citing inexperience of
a partnership’s promoters in the relevant business as one
indicator of lack of economic substance in the partnership).
Although Messrs. Lerner and Ackerman appear to have been the
principal negotiators on behalf of the Safari consortium in its
failed bid to purchase New MGM, we have virtually no information
regarding the companies that joined the Safari consortium or
93
As previously noted, Mr. Ackerman also testified to his
understanding of the CDR transaction, but his testimony was based
on what Mr. Lerner had told him.
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precisely what their interests were.94 It appears that Deyhle
Media Group and Capella Films had a substantial stake in that
proposed acquisition and, in fact, had initiated the dialogue
with Messrs. Lerner and Ackerman.
More importantly, beyond the testimonies of Messrs. Lerner
and Ackerman, we have no independent basis for determining the
precise roles that Messrs. Lerner and Ackerman played in the
Safari bid and what their motivations were. Petitioner claims
that he and Mr. Ackerman joined the Safari consortium to further
their long-range goals of building a substantial film library.
It is equally plausible, however, that Messrs. Lerner’s and
Ackerman’s roles in the Safari consortium were consistent with
the areas of their respective expertise: Mr. Lerner as a tax
expert and Mr. Ackerman as an expert in putting together
financing for film company acquisitions. In any event, one thing
is clear from the Ackerman group’s involvement in the MGM
transaction: At some point, the Ackerman group began eyeing the
substantial built-in tax losses that the Credit Lyonnais group
had in the MGM companies and began exploring the possible ways in
which it could exploit those built-in losses.
94
Petitioner listed Mark Seiler as a witness in his
pretrial memorandum; however, he did not call Mr. Seiler as a
witness at trial.
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b. Focus on Tax Attributes
As early as May 31, 1996, when Kaye Scholer submitted its
preliminary legal conclusions on MGM, Mr. Lerner had been fully
apprised of the potential of acquiring considerable built-in
losses in an acquisition involving the MGM companies. The Kaye
Scholer memorandum also provided a roadmap to structuring a
partnership transaction that would allow CDR to transfer its
built-in losses (totaling approximately $1.4 billion) to a
purported “Investor” by utilizing a partnership that would fail
to make a section 754 election. According to the memorandum, the
transaction “would increase the amount receivable by CDR over a
straight purchase.”
Mr. Lerner’s first written contact with CDR regarding a
possible deal, a letter dated September 11, 1996, began by
confirming Rockport Capital’s interest in “the U.S. tax
attributes which may relate to the direct and indirect
investments by Credit Lyonnais, S.A., and * * * [CDR] in Metro-
Goldwyn-Mayer, Inc.” The letter goes on to state that “Rockport
wishes to examine the Attributes so that it can propose to the
CDR certain structures incorporating the Attributes * * * which
will be of mutual benefit”. The letter makes no mention of any
films or partnering to conduct any film distribution business.
During the negotiations with CDR, the Ackerman group’s
entire focus was on the banks’ tax basis in the SMHC receivables
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and stock. The Ackerman group’s only point of negotiation became
directed towards obtaining representations from Generale Bank and
CLIS regarding their tax bases in the receivables and SMHC stock,
and that they had not written down their bases for tax or
accounting purposes.
Mr. Lerner’s own tax experience also gave him a general
appreciation of the tax significance of contributing high-basis
properties to a partnership and failing to make a section 754
election. In fact, Mr. Lerner marketed to Imperial, and then
implemented, a tax plan that virtually mimicked the CDR
transaction in attempting to exploit these tax aspects.
c. Nature of EBD Film Rights
Mr. Lerner testified that the Ackerman group was interested
in acquiring filmed entertainment assets and building a large
film library which “would be an extraordinary asset to hold for a
very long time.” Mr. Lerner’s testimony appears implausible when
we consider the film rights that Schedule 1.6(b) of the exchange
and contribution agreement purportedly provided. Schedule 1.6(b)
refers to “U.S. Video Film Rights”. Those purported rights,
however, did not encompass the kind of rights that one might
associate with a long-term film library investment. Indeed, the
term “U.S. Video Film Rights” seemingly refers only to video
distribution rights in the United States. SMHC did not own all
the rights to the various film titles. As Troy & Gould’s
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investigation later revealed, many of the distribution rights had
expired or were set to expire shortly after CLIS contributed them
to SMHC. We do not believe that the failure to define more
specifically the EBD film rights in the LLC agreement consistent
with Mr. Lerner’s stated purpose was simply an oversight. The
Ackerman group was well represented in the transaction with CDR.
Presumably, such important matters would have been addressed if
the Ackerman group were in fact focused on starting a film
library with the EBD film rights.
Responding to Mr. Peters’s testimony that the films selected
for the EBD library were films of no significant value,
petitioner seems to suggest that the banks may have conspired to
defraud the Ackerman group. The bulk of the evidence in the
record, however, suggests strongly that the selection of the EBD
film rights was not a product of any fraud by the banks. On the
contrary, for the reasons described below, we are led to the
conclusion that the Ackerman group was either fully aware of the
nature of the film titles that CLIS contemplated contributing to
SMHC or simply did not care about the nature of those film
rights.
First, although the parties exchanged numerous drafts of
various documents between October 16, 1996, and December 10,
1996, none of those drafts alludes to any film rights, generally,
or the EBD film rights, specifically. The first listing of the
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EBD film rights appears to have been given to the Ackerman group
on December 12, 1996, one day after the purported closing on the
CDR transaction.95 Before then, there appears to have been no
mention or interest in those film rights on the part of the
Ackerman group in their negotiations with CDR. Mr. Lerner, for
his part, could not recall when he was given a listing of the EBD
film rights.
Second, even though the Ackerman group conducted due
diligence in the CDR transaction, the focus of this due diligence
was on Generale Bank’s and CLIS’s tax bases in the contributed
receivables and SMHC stock. Prior to the closing on the CDR
transaction, due diligence with respect to the contributed film
rights was largely nonexistent.96 Indeed, the only evidence of
95
The final draft of the exchange and contribution
agreement in the record has an attached Schedule 1.6(b), which is
a list of the EBD film titles and development projects. The
record contains a facsimile dated Dec. 12, 1996, from White &
Case to Mr. Lerner and several other persons, transmitting an
attached Schedule 1.6(b) to the exchange and contribution
agreement. From the serial numbers on the pages of this faxed
attachment, which also appear on the pages of Schedule 1.6(b)
attached to the exchange and contribution agreement (but which do
not correlate with the serial numbers on the other pages of the
exchange and contribution agreement), it appears that White &
Case actually sent this attached schedule to the Ackerman group
on Dec. 12, 1996, one day after the purported closing on the
transaction.
96
In the exchange and contribution agreement, CDR and CLIS
represented and warranted: “Schedule 1.6(b) attached hereto sets
forth all the assets held by * * * [SMHC], all of which assets
are held free of all material Encumbrances created by * * *
[SMHC]. * * * [SMHC] has good title to all such assets.”
(continued...)
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due diligence on the film rights is an appraisal that Sage
Entertainment conducted. Mr. Lerner testified that approximately
4 to 6 weeks before the closing on the CDR transaction, he hired
Steve Kutner of Sage Entertainment to appraise the EBD film
library, that he had a large number of discussions with him about
various approaches to valuation, and that Mr. Kutner appraised
the EBD film library at $29 million.97 Mr. Lerner testified
that, on the basis of Mr. Kutner’s valuation, he felt “very
96
(...continued)
Schedule 1.6(b), of course, contains a listing of the EBD film
titles and development projects. The exchange and contribution
agreement provides indemnification from CDR (capped at $2
million) for any material breach of this representation and
warranty. See Exhibit 188-J, J001341, 1344. It is patently
unclear what is meant by the term “good title” and whether these
provisions afford any meaningful rights with respect to the EBD
film library. Petitioner’s representatives, Troy & Gould,
acknowledged this “recitation” of good title; however, they
concluded:
despite this recitation, we do not have documentation
of the assignment [from CLIS to SMHC]. Moreover, the
term ‘U.S. Video Film Rights’ is nowhere defined in the
Agreement, and the Agreement contains no explicit
recitation that Santa Monica Holdings owns such rights.
Rather, this phrase appears only as the heading on the
Schedule; the phrase does not appear in the body of the
Agreement.
This is another significant gap in the chain of title.
Despite the obvious infirmities in SMHC’s rights to the EBD film
titles, there is no indication that the Ackerman group ever
claimed any indemnification under this provision.
97
Mr. Kutner did not include in this figure the value of
second-cycle exploitation or other rights, which he opined could
increase the value of the EBD film library by as much as 40 to 50
percent.
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comfortable that with the investment we were making at least we
had assets worth as much as we were investing and that it could
be considerably more if managed properly.”
Other than Mr. Lerner’s testimony, we have no basis for
gauging Mr. Lerner’s reliance on this appraisal. Although Mr.
Kutner’s appraisal report would seem to form a critical part of
his case, petitioner did not call Mr. Kutner as a witness.
Consequently, Mr. Kutner’s appraisal report has not been received
into evidence and cannot be relied upon for establishing the
value of the film library.
The appraisal report itself indicates that it is limited to
a financial analysis of the film library and its potential
earnings. The report states that Mr. Kutner did not physically
inspect the materials for the various film titles, and he assumed
that the legal and physical status of the EBD film library “is in
good condition”. The report does not provide any analysis of the
rights that SMHC acquired in the film titles (except for the
general reference to “U.S. Video Film Rights”) and appears to
assume that SMHC actually owned the full bundle of rights
associated with the EBD film titles. The report also appraised
the EBD film library “as if it was free and clear of debt and
under responsible ownership and competent management”.
Presumably, however, when the EBD film library was assigned to
SMHC, it became subject to the $1 billion debt that SMHC owed.
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On the basis of the evidence in the record, we have no great
confidence that the appraisal report, as offered, was completed,
or was given to Mr. Lerner, before the closing on the transaction
with CDR. The photocopy of the appraisal report that is in the
record is undated, except for a cover letter from Mr. Kutner to
Mr. Lerner dated December 9, 1996--just 2 days before the closing
of the CDR transaction and after most of the details of the
transaction were already established. The appraisal report
anachronistically refers to the 65 film titles as the “Santa
Monica Holdings, Inc. Film Library” and states that SMHC owns
those 65 film titles; however, the 65 film titles were not
assigned to CLIS or SMHC (from CLIS) until December 10, 1996.98
The appraisal letter also alludes to other information which the
record demonstrates was not apparent on December 9, 1996. For
example, as previously discussed, there is no indication that the
EBD film titles were ever identified to Mr. Lerner (or through
him, to Mr. Kutner) before December 12, 1996. Also, Mr. Kutner’s
cover letter alludes to certain limitations and caveats relating
to the future distribution plans for the library, “which are more
98
The appraisal report states: “The opinions, conclusions,
and estimates of value presented in this report are based, in
part, on assumptions and financial data furnished to me by Santa
Monica Holdings, Inc., which I have assumed to be correct and
current.” Inasmuch as SMHC did not own the 65 film titles before
Dec. 10, 1996, or have any known relationship to those film
titles, Mr. Kutner’s purported reliance on information from SMHC
seems dubious.
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fully set forth in the section of the Appraisal styled ‘Limiting
Conditions for the Appraisal.’” The appraisal report in the
record, however, does not contain any section entitled “Limiting
Conditions for the Appraisal.”
Mr. Kutner’s $29 million valuation of the EBD film titles
appears highly inflated. Indeed, that valuation greatly exceeds
(by more than three times) the highest value ($9 million) that
petitioner’s expert (Steven Wagner) arrived at in valuing the EBD
film titles.99 Mr. Kutner’s valuation takes into account
technologies (e.g., DVD) that the other experts in these cases
opined were either not foreseen in 1996, were only latently
observable at that time, or were no longer viable.100 In doing
99
We discuss the valuation conclusions of petitioner’s
expert, Steven Wagner, in more detail infra.
100
For example, Mr. Kutner projected $1,320,000 in DVD
revenue. Although DVD technology was predicted to emerge at some
point after 1996, the success of that technology was not readily
foreseen. For that reason, petitioner’s expert projected no
revenue from DVD sales in his valuation. Mr. Kutner also
projected $1,100,000 in royalty income from laserdisc sales.
According to petitioner’s expert, laserdisc sales in 1996 were
relatively insignificant, even though the technology had been
around for a few years. Neither petitioner’s expert nor
respondent’s expert (Richard Medress) took laserdisc sales into
account. Mr. Kutner also projected $2,410,000 in royalty income
from the revenue-sharing (Rentrak) model for the rental market.
Under this model, video rental stores would pay a small fee up
front to buy a rental film and would then share a portion of the
rental fees with Rentrak. In 1996, however, the rental market
still operated on a front-end sales model; i.e., video rental
stores made a one-time payment up front (e.g., $59 per copy) to
purchase copies of a film, which they could then rent an
unlimited number of times. Neither petitioner’s expert nor
(continued...)
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so, Mr. Kutner’s appraisal went beyond what Mr. Lerner understood
to have been a valuation based on VHS videotape sales
projections. Indeed, Mr. Lerner testified that “six or seven
years ago when we did all this all we knew about were VHS
videotapes.” “At that time, we focused on what the technology
was thinking that there might be additional technology, so we
valued it only in terms of what we thought the then existing
technology might be and hoping that additional technology would
come along to enhance the value.” Without Mr. Kutner’s testimony
or some corroborating evidence, we are not persuaded that the
Sage Entertainment appraisal was made in good faith or that Mr.
Lerner relied upon it in the course of the CDR transaction.
The nature of the rights, if any, that SMHC obtained in the
EBD film titles was, and remains, patently unclear. On December
9, 1997, Troy & Gould concluded that there were significant gaps
in the chain-of-title documentation for the EBD film titles and
rights to some of the film titles had expired or were expiring.
Troy & Gould concluded that: “it is not possible to determine
what rights have effectively been acquired. It also is unclear
who possesses the rights other than domestic video in the various
pictures, and who possesses the reversion rights in domestic
video.” This point is clearly illustrated when we consider that
100
(...continued)
respondent’s expert projected any revenue from the revenue-
sharing (Rentrak) model.
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two of the EBD film titles that Troma attempted to distribute,
“Astro Zombies” and “Banana Monster”, were the subject of
immediate cease and desist letters. SMHC was also informed that
the rights to a third film that Troma attempted to distribute,
“Fist of Fear, Touch of Death”, had also expired.
Further, it appears that the physical elements for a number
of the EBD film titles do not exist and that the general physical
condition of the materials for the remaining film titles is
suspect. Indeed, Mr. Peters testified that the physical
materials for many of the film titles were stored at the Epic
warehouse, which was not a temperature- or humidity-controlled
facility, and was not bonded, subject to inventory control, or
otherwise secured.
It is clear that by December 9, 1997, when Troy & Gould gave
their conclusions on the EBD film library, Mr. Lerner was well
aware that there were major problems with the EBD film rights and
that the film library had very little value. If, as petitioner
claims, the EBD film rights were an integral part of a film
business with CDR, then these conclusions would have revealed
some very deep-seeded shenanigans on the part of CDR, Generale
Bank, and CLIS. One would suspect that, in these circumstances,
Messrs. Lerner and Ackerman would have been very upset.
Nonetheless, in April 1998, we find Mr. Lerner meeting with a
representative of Generale Bank. Mr. Lerner testified that he
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was interested in reviving Generale Bank’s participation in SMP’s
film activities and had written a letter expressing this
interest. The letter from Mr. Lerner states: “I would like to
acquire additional film assets from GB and would like their
active participation in our partnership.”101
On the basis of the evidence in the record, it appears that
the Ackerman group was largely unconcerned with the supposed film
assets that were to form the foundation of their proposed film
business with CDR. There is no evidence that they ever requested
or received any information regarding the EBD film rights.
Although the record contains numerous drafts of various documents
relating to the CDR transaction, none of those drafts contain any
specific reference to the EBD film rights. Consequently, it is
reasonable to conclude that the Ackerman group did not care what
film rights CLIS contributed to SMHC and that the contribution of
the EBD film rights was largely incidental to Generale Bank’s and
CLIS’s contributions of the high-basis, low-value receivables and
SMHC stock.
101
After Troy & Gould reached its conclusions, Mr. Lerner
sold portions of the $974 million in receivables from Generale
Bank to his friend, colleague, and business associate, Mr. van
Merkensteijn. In determining a purchase price for the
receivables, Mr. van Merkensteijn testified that he relied on the
Sage Entertainment $29 million appraisal. By this time, however,
it would have been clear, at least to Mr. Lerner, that this
appraisal was grossly overstated.
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After the closing of the CDR transaction, Mr. Lerner, Mr.
Herz, and the law firm of Troy & Gould made efforts to confirm
the titles to the films and obtain physical elements for the
films. We are unpersuaded, however, that these efforts amounted
to much more than window-dressing. Mr. Peters testified that he
perceived Troy & Gould’s investigation to be abnormal considering
the age of the film titles, the original production cost of the
films, and the distressed nature of the companies that were the
source of the films. He testified that although Troy & Gould’s
efforts might be completely appropriate with respect to other
kinds of films, they “might not be so appropriate” with respect
to the EBD film titles.
Beyond its due diligence process, Troy & Gould and Mr. Herz
expended considerable effort to obtain facility and laboratory
access letters. Those efforts extended into 1998, even after
Troy & Gould provided Mr. Lerner with its legal conclusions
regarding the EBD film titles. Given the nature of the
particular film titles and Troy & Gould’s revelations, we are
unpersuaded that these efforts, too, were not mere window-
dressing.
d. Purported Interest in CDR Library
Petitioner also claims that he and Mr. Ackerman were
interested in adding the 1,000-film CDR library to SMHC, and that
they thought that having an indirect interest in that company and
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being partners with the banks would put them in a better position
to acquire that library. Other than his self-serving testimony,
petitioner points to no evidence to suggest that the parties to
the transaction either discussed or contemplated any dealings
involving the general CDR library. In fact, there is no
indication that the Ackerman group was given any sort of
preference in 1997 when CDR was being sold.102
Petitioner also testified that CDR asked for the $5 million
advisory fee in connection with the remaining film titles in the
CDR library as a “guaranty payment” to enable the Ackerman group
to work with CDR. He testified that the Ackerman group was
willing to pay that fee “because we thought we would be able to
get our hands on a much larger library, and certainly we did
pursue it at a later time.” The advisory fee agreement
indicates, however, that the advisory fee was paid specifically
as an inducement for CDR, Generale Bank, and CLIS to execute the
letter agreement and exchange and contribution agreement. None
of the various legal documents that the parties exchanged
contains any reference to a guaranty or any assurances regarding
the CDR library. One would expect some legal representations
regarding this matter if the $5 million advisory fee was in fact
paid as a guaranty for the CDR library.
102
According to petitioner, Generale Bank and CLIS were
still partners in SMP at that time.
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e. Purported Springboard for New Library
Petitioner contends that he and Mr. Ackerman were interested
in using SMHC for its historical significance to build a new film
library. We cannot agree. For all intents and purposes, MGM
Group Holdings’ association with the MGM operating company ended
when Mr. Kerkorian acquired that company. Any potential name
recognition in that company was obliterated when MGM Group
Holdings changed its corporate name to “Santa Monica Holdings
Corporation” on October 15, 1996. In addition, in a letter
agreement with P&F Acquisition dated October 10, 1996, CDR, MGM
Holdings, and MGM Group Holdings agreed that they would not use
any of MGM’s trademarks; i.e., “MGM,” “Metro-Goldwyn-Mayer,” the
“MGM lion logo,” or any trademarks related thereto. Without
these trademarks, Mr. Lerner seemingly would have been hard-
pressed to capitalize on MGM’s historical underpinnings using
SMHC. Finally, there is no evidence that SMHC’s purported film
business was ever, in fact, bolstered by its prior status as the
MGM parent company.
f. Acquiring NOLs for a Film Business
Petitioner also contends that he and Mr. Ackerman were
interested in using the net operating losses (NOLs) in SMHC to
offset future income from their prospective film business. We
are unpersuaded that the Ackerman group had any legitimate
interest in SMHC’s NOLs. Although there were sizeable NOLs in
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SMHC when CLIS contributed the SMHC stock to SMP, the use of
those NOLs was not guaranteed. Use of the NOLs was subject to
the tax attribute rules of section 382. Under those rules, use
of the NOLs would be contingent on structuring a transaction in
such a way as to meet the “ownership change” rules of section
382(g). On this record, we cannot rule out the possibility that
CLIS’s contribution of the SMHC stock to SMP constituted an
“ownership change” for purposes of section 382(g) so that the
NOLs were unavailable after that point.103
Although petitioner claims that his due diligence efforts
for the transaction with CDR were directed at determining the
potential use of the NOLs in SMHC, the focus of his due diligence
was not on the NOLs, but on the built-in tax losses in the
receivables and SMHC stock. Mr. Lerner hired James Rhodes to
assist in the Ackerman group’s due diligence process. Mr.
Rhodes’ due diligence investigation appears to have been focused
exclusively on the banks’ bases in the SMHC receivables and
stock. For example, Mr. Rhodes’ “Basis Chronology” contained an
analysis of the bases in the SMHC receivables and stock; it does
103
Petitioner claims, without explanation, that an ownership
change for purposes of sec. 382(g) occurred when the banks
withdrew from SMP and that the NOLs were “substantially
diminished”. Petitioner claims, again without explanation, that
“SMHC’s net operating losses were not used because the SMHC
library was not sold, but rather was combined with the Troma film
library in a ‘C’ reorganization in 1999. That reorganization
completely eliminated the net operating losses.”
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not mention any NOLs.104 Also, on May 12, 1997, Mr. Rhodes
received a letter from White & Case, confirming that the banks
had not derived any U.S. tax benefit from the contribution of the
SMHC receivables and stock or the exercise of their put rights.
Shearman & Sterling also conducted due diligence on behalf of the
Ackerman group. Like Mr. Rhodes’s investigation, Shearman &
Sterling’s investigation focused on the tax bases in the SMHC
receivables and stock. See, e.g., Exhibit 166-J. The memoranda
that Shearman & Sterling prepared for Mr. Lerner discussed, among
other things, section 382. These memoranda, however, were
focused on that section’s potential application to the built-in
losses in the stock of MGM Holdings (and MGM Group Holdings) and
not NOLs.105
g. Contemporaneous Expression of Purpose
On December 12, 1996, the day after the transaction with
CDR purportedly closed, Mr. Lerner faxed to Jerry Carlton of
104
Mr. Lerner testified that he hired Mr. Rhodes to
investigate whether any transfers occurred using the NOLs in
SMHC. He testified that he was concerned that “if there had been
a transaction which had either disposed of or written down or
taken a tax benefit in respect of any of those interest, that it
would have--might have been treated as a transfer affecting the
use of the net operating loss in * * * [SMHC].” According to Mr.
Lerner, the best indication of such a transfer affecting the use
of the NOLs is whether there has been a basis step-up or
stepdown. We find petitioner’s testimony specious.
105
In the context of the proposed transactions in the
memoranda, Shearman & Sterling concluded that “Holdings and Group
will undergo an ownership change” for purposes of sec. 382.
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O’Melveny & Myers an article entitled “GE Capital Wins Bid for a
Portfolio of Bad Loans from Credit Lyonnais”. The article was
from the December 12, 1996, issue of the Wall Street Journal and
discussed General Electric’s purchase of a $190.3 million
portfolio of “bad” French property loans from Credit Lyonnais.
In an attached memorandum letter to Mr. Carlton, Mr. Lerner
explains that “Attached is an article from today’s Wall Street
Journal * * * describing a transaction similar to ours. This
gives good support for our business purpose for doing the deal.”
The article states in relevant part:
U.S. financial-services giant General Electric
Capital Corp. won the bidding for a portfolio of Credit
Lyonnais’s bad French property loans, which have a book
value of one billion francs ($190.3 million). The
transaction was another sign that competition is
heating up among U.S. vulture funds seeking to take
advantage of France’s long-running real-estate crisis.
The sale was carried out by Consortium de
Realisation, an entity set up last year by the French
state to take on most of Credit Lyonnais’s nonbanking
assets as part of a rescue plan for the crippled state-
owned bank. * * *
* * * * * * *
The sale of the bundle of 127 lines was the first
by CDR, with more expected to follow. French banks and
insurers have been severely hurt by their exposure to
the domestic real-estate market, but for a long time
they refused to write down their loans.
3. Conclusion
In sum, the Credit Lyonnais group had a very troubled
history in the film business. In 1996, they were seeking to
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dispose of their troubled film assets as expeditiously as
possible. At some point, Messrs. Lerner and Jouannet struck a
deal involving a purported acquisition of MGM Group Holdings
(SMHC) and the formation of a limited liability company.
Although petitioner claims that Mr. Jouannet wanted to enter into
a film distribution business with the Ackerman group, the
evidence in the record and the testimony suggest otherwise. In
fact, Mr. Jouannet worked for CDR, which had the assigned task of
liquidating Credit Lyonnais’s losing film assets and loans,
including MGM and MGM Group Holdings. Mr. Jouannet’s goal was to
realize whatever he could, as fast as he could. He was not
interested in any film venture with the Ackerman group. The
banks did not contribute a viable “starter” film library to SMHC,
as petitioner suggests. Instead, what petitioner claims to have
been the cornerstone of a supposed film venture turns out to be
nothing more than a jumble of lackluster film titles. We
conclude that the Ackerman group and the banks did not intend to
partner with one another in any film distribution business.
E. Objective Economic Substance
Under the second factor of the economic substance doctrine,
objective economic substance, we must determine whether the
transaction had any economic significance beyond the creation of
tax benefits. See, e.g., Casebeer v. Commissioner, 909 F.2d at
1365. Our inquiry must consider “‘whether the transaction has
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any practicable economic effects other than the creation of
income tax losses.’” Jacobson v. Commissioner, 915 F.2d 832, 837
(2d Cir. 1990) (quoting Rose v. Commissioner, 868 F.2d 851, 853
(6th Cir. 1989), affg. 88 T.C. 386 (1987)), affg. in part, revg.
in part, and remanding T.C. Memo. 1988-341; see also Rosenfeld v.
Commissioner, 706 F.2d 1277, 1282 (2d Cir. 1983) (holding that
courts must consider “whether there has been a change in the
economic interests of the relevant parties.”), affg. T.C. Memo.
1982-263.
Viewed according to their objective economic effects rather
than their form, Generale Bank’s and CLIS’s contributions to SMP
in exchange for partnership interests were economically
inconsequential events. The banks’ purported partnering with SMP
had no meaningful economic significance other than as an
“ephemeral incident” to serve as a conduit for the banks’ built-
in losses. Helvering v. Gregory, 69 F.2d 809, 811 (2d Cir.
1934), affd. 293 U.S. 465 (1935). Moreover, the purported
partnering offered the Ackerman group no realistic economic
benefits apart from tax consequences. For the reasons described
below, we conclude that the transaction’s objective economic
reality and consequences belie its form.
1. Economic Significance of Banks’ “Contributions”
Petitioner argues that whether or not the banks intended to
enter into a film business with the Ackerman group, “all parties
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recognized that the banks were committed as partners from the
time they signed the partnership documents.” Petitioner’s
argument might be construed to suggest that the banks’
contributions to SMP and their receipt of preferred interests had
objective economic significance beyond petitioner’s asserted
business purpose for the transaction and the existence of the
Ackerman group’s tax considerations. We disagree. The banks’
tightly wrapped and virtually guaranteed exercise of their put
rights negates whatever economic significance might otherwise
have attached to the banks’ joining SMP. The faint illusion of a
partnership interest cannot cloak the reality that the banks
planned, and had every economic incentive, to exit the
partnership as expeditiously as possible. In substance, the
Ackerman group paid the banks $10 million ($5 million as an up-
front “advisory fee” and $5 million upon the banks’ exercise of
their put rights) in exchange for the banks’ high-basis, low-
value receivables and SMHC stock so that the banks could
“monetize”, and the Ackerman group could attempt to exploit, the
tax attributes associated with these assets.
a. Advisory Fee and Put Price
All the various agreements between the Credit Lyonnais group
and the Ackerman group were tied to the side letter agreement,
the deposit account agreement, and the advisory fee deposit. For
example, the side letter agreement provides that it shall become
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effective (the “Effective Date”) on the date on which all the
following conditions have first been satisfied: (1) Each of the
parties shall have signed a counterpart of the side letter
agreement and each of Rockport Capital and CDR shall have
received a full set of counterparts; and (2) Rockport Capital
shall have deposited in a specified account $5 million; i.e., the
sum of the preferred capital accounts of Generale Bank and CLIS
on the closing date. The side letter agreement further specifies
that “The parties hereto agree that, notwithstanding any
provision of the * * * [exchange and contribution agreement],
CDR, Generale Bank, and CLIS shall have no obligation to make the
Contributions as defined in * * * [that agreement] unless and
until the Effective Date has occurred hereunder.” The deposit
account agreement, in turn, provides that Rockport Capital shall
on “the Effective Date deposit in the Deposit Account the amount
required to be deposited therein” pursuant to the side letter
agreement.
Pursuant to the advisory fee agreement, “To induce CDR, CLIS
and GB to execute the Letter Agreement” and the exchange and
contribution agreement, Rockport Capital agreed to pay CLIS on
the “Effective Date” in U.S. dollars and immediately available
funds “(x) an advisory fee of $5,000,000 and (y) an additional
advisory fee equal to 3/4 of 1% of the tax losses, if any, in
excess of $1 billion that have been allocated to all members of
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the Company other than GB, CLIS, Rockport or their affiliates” as
of the closing date on the exchange and contribution agreement.
In similar fashion, the advisory fee agreement provides that
“Rockport hereby agrees that notwithstanding any provision of the
Letter Agreement to the contrary, the Effective Date will not
occur unless Rockport has made the payment, if any, required by
the preceding paragraph.”
i. Banks’ Understanding
Sean Geary of White & Case was CDR’s principal U.S. counsel
in the sale of New MGM and its lawyer in the transaction with
Rockport Capital.106 He testified that at all times Mr. Jouannet
had in mind a price for the CDR transaction of approximately $10
million.
The bottom-line result of the banks’ purported partnering
with SMP, and the exercise of their put some 3 weeks later, was
that the banks received their anticipated $10 million price for
the CDR transaction. The advisory fee was paid to the banks up
front, as a precondition to the CDR transaction’s becoming
106
Mr. Geary has practiced law at White & Case for more than
30 years. He represented Credit Lyonnais and CDR for many years
before the CDR transaction and had a very significant role with
those companies vis-a-vis MGM. In fact, from January 1992 until
New MGM was sold in 1996, Mr. Geary served on the board of
directors of MGM-Pathe (and its successors). Although Mr.
Geary’s expertise was primarily in bank finance, his
representation of Credit Lyonnais and CDR was much broader--he
did “all their auditing on a big picture basis.” Mr. Geary
drafted the stock purchase agreement for the New MGM sale.
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effective.107 Mr. Geary testified that during the course of the
negotiations with the Ackerman group, Mr. Jouannet and other
individuals at the banks began to worry “whether Lerner and his
people were good for” the $5 million put price. They therefore
decided that the put price should be placed in escrow in
connection with the closing on the transaction with the Ackerman
group. To this end, Mr. Geary drafted a “Deposit Account
Agreement”, which was designed to guarantee payment of the put
price in the event that the put option was exercised.
Mr. Geary testified that, in the transaction with the
Ackerman group, the banks were relying on the side letter
agreement that gave Generale Bank and CLIS the right to put
(“monetize”) their preferred interests in SMP to Rockport
Capital--“the side letter was always a precondition to CDR or
Credit Lyonnais signing anything else.” He explained that
Generale Bank and CLIS did not care about the various provisions
107
On Dec. 12, 1996, Mr. Lerner, on behalf of Rockport
Capital, faxed to Citicorp Trust, a document requesting Citicorp
Trust to wire $5 million from Somerville S Trust’s account to an
account at Chase Manhattan Bank on Dec. 13, 1996. It appears
that this amount represented the $5 million advisory fee that the
Ackerman group was obligated to pay CLIS.
The Ackerman group also agreed to pay the banks an
additional advisory fee equal to 3/4 of 1 percent of the tax
losses, if any, in excess of $1 billion that would be allocated
to all members of SMP other than Generale Bank, CLIS, Rockport,
or their affiliates as of the exchange and contribution agreement
closing date. The record is unclear whether the Ackerman group
ever paid the banks any additional amount of advisory fee.
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in the agreements: “Because they were going to exercise their
put.” For example, with respect to the SMP LLC agreement’s
reference to a film production and distribution business, Mr.
Geary testified that “I certainly can tell you that I was of the
belief when I received this that I didn’t care from my client’s
perspective what was in here other than a couple of things that I
marked up and sent back, the transfer provisions and one of the
confidentiality provisions.”
Mr. Geary testified that, as of December 11, 1996, he knew
that Generale Bank and CLIS were going to exercise the put on
December 31, 1996, the earliest possible date for the put’s
exercise. “I knew * * * [Mr. Jouannet] was going to exercise the
put. He had a year to exercise the put. I clearly knew from the
very beginning he was exercising the put.” “As I’ve tried to
say, I always knew that the put was going to be exercised at some
point. * * * That was clearly my understanding of the deal.”
We found Mr. Geary’s testimony exceptionally credible,
thorough, and persuasive. His testimony shows convincingly that
the banks had no intention of partnering with the Ackerman group
and had planned from the beginning to exercise the put rights in
the side letter agreement as expeditiously as possible.
ii. Ackerman Group’s Understanding
Petitioner claims the he and Mr. Ackerman had no prearranged
understanding with CDR that the banks would exercise their put
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rights. Petitioner claims that he and Mr. Ackerman had every
hope and expectation that the banks would remain their partners
for an extended period. We find, however, that they did have a
prearranged understanding.
First, as Mr. Geary testified, the banks were relying on the
side letter agreement with Rockport Capital and fully intended to
exercise their put rights to accomplish their overall goal of
disposing of their interests in SMHC. Mr. Lerner was intimately
engaged in the negotiation and drafting process at all levels,
including in his one-on-one negotiations with Mr. Jouannet. It
defies reason that Mr. Lerner would have been unaware of the
banks’ plans. Every aspect of the Credit Lyonnais group’s
history and of the negotiation and drafting process pointed
towards the banks’ exercising their put rights. In fact, the
totality of facts in the record persuades us that the banks’
exercise of their put rights was integral to the Ackerman group’s
plans, was fully contemplated by them, and was part of the deal.
Also, in one of the drafts of the SMP LLC agreement that
emerged in the course of the negotiations, Mr. Geary commented
that CDR would require Mr. Lerner to provide consents at closing
permitting the transfer of Generale Bank’s and CLIS’s preferred
interests to a CDR affiliate and the subsequent transfer of those
interests to Rockport Capital, pursuant to the side letter
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agreement.108 See Exhibit 173-J, J001736. Mr. Geary testified
that he wanted to make it clear that the manager (i.e., Mr.
Lerner) consented to the transfers “because they were what was
being planned.” Before closing on the transaction with CDR, Mr.
Lerner executed a consent giving effect to Mr. Geary’s comments.
The consent was predated “____________, 1996.”109 We infer from
Mr. Geary’s comments and this consent that there was an
understanding on the part of Mr. Lerner that Generale Bank and
CLIS would exercise their put rights at the earliest possible
point, on December 31, 1996.
iii. Negotiation and Drafting Process
Petitioner suggests that the “intensity and duration of the
negotiations” between the Ackerman group and CDR connotes
substance to the banks’ purported partnering with SMP. In
support of this suggestion, petitioner points to the numerous
drafts of the letter agreement, the side letter agreement,
supplementary terms, the exchange and contribution agreement, the
108
Mr. Geary’s comments were faxed to Mr. Lerner and his
representatives at Shearman & Sterling.
109
When questioned about the date on the consent, Mr. Lerner
testified that the consent was part and parcel of the banks’ put
rights. “It allowed them to implement the put if it were
exercised. Notice it was undated. And as part of the
implementation of the put, if they were to exercise it, it was
requested that I sign this.” When pressed about the “1996” date
on each of the consents, Mr. Lerner testified that “I would say
it’s undated.”
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SMP LLC agreement, the deposit account agreement, the interest
option agreement, and the advisory fee agreement.
As described more fully below, our careful review of the
numerous drafts to which petitioner alludes does nothing to
bolster petitioner’s claims but leads us to two conclusions:
(1) That the Ackerman group was focused exclusively on obtaining
the high-basis, low-value receivables and SMHC stock from the
banks and getting assurances from Generale Bank and CLIS
regarding their tax bases in those assets; and (2) that CDR,
Generale Bank, and CLIS were focused exclusively on establishing
the put rights, guaranteeing full payment on those rights,
securing an advance consent to transfer the put rights and
withdrawal from SMP, and reserving whatever value might be
recovered on the Carolco securities.
Between October 16 and November 21, 1996, the parties
exchanged a draft term sheet and numerous drafts of a letter
agreement embodying the basic terms that Messrs. Lerner and
Jouannet had agreed upon in their discussions. In these various
documents, it was contemplated that Generale Bank would
contribute its $974 million in receivables and CLIS would
contribute its MGM Group Holdings (SMHC) stock (and in later
drafts, the $79 million receivable) to “Newco” (a prefiguration
of SMP) in exchange for preferred interests. Rockport Capital
and its associates would contribute cash and securities to Newco
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in an agreed amount to enhance and monetize the value of Generale
Bank’s and CLIS’s preferred interests.110 This proposed
transaction “would require Generale Bank and CLIS simply to
transfer their respective assets to a Newco in exchange for
preferred interests which will be monetized.” The drafts
provided that after 5 years the preferred interests were
convertible into Newco common membership interests and provided
that, if the conversion right were exercised, Newco could redeem
all of the preferred interests at their liquidation value.
Throughout the course of the drafting process, these fundamental
features of the deal between CDR and Rockport Capital did not
materially change, and they were incorporated into the various
agreements.111
In these various drafts, CDR was not focused on the letter
agreement but was instead focused on the side letter agreement,
110
The Ackerman group originally proposed that Generale Bank
would acquire MGM Group Holdings stock, would contribute the $974
million in receivables to MGM Group Holdings, and would then
contribute the MGM Group Holdings stock to Newco for preferred
interests. In the draft term sheet, the Ackerman group proposed
an alternative transaction (involving CLIS’s contribution of MGM
Group Holdings stock) “if CLIS’s current basis in Group stock is
significant”.
111
At certain points, the identities of the parties changed.
For instance, CDR was substituted for Generale Bank and CLIS at
certain points. A CDR affiliate, Santa Monica (Rotterdam)
Finance B.V., at one point was to hold the preferred interests
for Generale Bank or CLIS. In the early drafts, Rockport
Advisors was identified as an initial member in Newco rather than
Rockport Capital.
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which gave Generale Bank and CLIS the right to put their
preferred interests in “Newco” to Rockport Capital. Mr. Geary
testified that by the time of the draft letter agreement,
“clearly there was going to be a second letter, a put letter.
That’s what I understood to be monetized. There was a put
available. We didn’t have to wait, you know, for the time of the
deal.” According to Mr. Geary, it was unimportant to CDR or Mr.
Jouannet what the letter agreement said about the terms of the
preferred interests and the conversion rights, because CDR was
relying on the side letter agreement that required Rockport
Capital to purchase all of Generale Bank’s and CLIS’s preferred
interests for $5 million.
Other than this “put” agreement, four points of negotiation
developed from CDR’s perspective:
First, CDR insisted that the $5 million advisory fee be paid
as a condition to closing on the exchange and contribution
agreement and the $5 million put price be deposited in a blocked
account before closing, thus guaranteeing payment when the put
rights were exercised. The banks decided that the put price
should be placed in escrow in connection with the closing on the
CDR transaction. Mr. Geary drafted a deposit account agreement,
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which was designed to guarantee payment of the put price when the
put rights were exercised.112
Second, CDR wanted an earlier put period than the Ackerman
group had proposed. In an early revised draft of the side letter
agreement, the Ackerman group proposed: “The Put will be
effected upon two days written notice from a Seller to Purchaser
given no earlier than December 31, 1997 directing that the Put be
effected.” CDR, however, insisted on the following put period:
“The Put will be effected no earlier than December 31, 1996 and
no later than December 31, 1997 upon two days written notice from
a Seller to Purchaser directing that the Put be effected.”
Third, CDR wanted assurances that Generale Bank or CLIS
could transfer their preferred interests to an affiliate and
withdraw from SMP without triggering the transfer and withdrawal
restrictions in the SMP LLC agreement.113 Mr. Geary therefore
demanded that consents by SMP’s manager would be required at
closing, permitting the transfer of Generale Bank’s and CLIS’s
preferred interests to a CDR affiliate and the subsequent
112
At one point, the deposit account agreement was changed
to provide that the depositing bank would withdraw and pay to
Rockport Capital any funds still on deposit on Jan. 2, 1998.
113
Pursuant to the transfer provisions: No member could
sell, transfer, or dispose of its membership interest without the
manager’s written consent; no member could retire or withdraw
from SMP without the manager’s written consent, except in certain
defined circumstances; and no person could become a member of SMP
without the manager’s written consent and the new member’s
assumption of all the terms and conditions of the LLC agreement.
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transfer of those interests to Rockport Capital pursuant to the
side letter agreement.
CDR was also concerned that communications with the
affiliate might cause problems with the stringent confidentiality
provision in the agreement.114 Mr. Geary therefore insisted on an
exception to the confidentiality provision for information that
is disclosed on a confidential basis to a proposed transferee of
some or all of the membership interests of a member.
Fourth, CDR became very focused on the Carolco securities
and wanted to retain whatever value might be realized on those
securities. Indeed, following the basic agreement that the
parties reached on November 21, 1996, CDR proposed several
variations of an agreement tied to the Carolco securities.
Initially, CDR had proposed alternate classes of preferred
interests in Newco (SMP), Class A and B preferred interests,
which would be issued to Generale Bank and CLIS along with 5
percent of the common interests to Generale Bank and CLIS.115 The
parties agreed that Somerville S Trust and Mr. Lerner would have
options to acquire: (i) The Class B preferred interests at a
114
The confidentiality provision provided that SMP’s members
would not reveal to any other person any nonpublic, confidential,
or proprietary information relating to SMP’s business that was
acquired in connection with the transactions contemplated by the
LLC agreement.
115
The Class B preferred interests were given a $7 million
capital account and certain annual distribution rights.
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price equal to the lesser of $7 million or the value of the
Carolco subordinated notes; and (ii) the 5-percent common
interests at a price equal to the lesser of $3 million or the
value of the Carolco preferred stock. Both options were
exercisable for a period of 12 months after the earlier of 5
years from the date of issue or the liquidation of the Carolco
subordinated notes and the Carolco preferred stock,
respectively.116 Eventually, the parties eliminated the alternate
classes of preferred stock and the issuance of 5 percent of the
common interests to Generale Bank and CLIS; they agreed instead
to certain preferred distributions and an additional contingent
put price tied to the liquidation value of the Carolco
subordinated notes and Carolco preferred stock.117 Through these
116
Mr. Geary became concerned with the proposed options on
the alternate Class B preferred and 5 percent common stock
interests. Mr. Geary was uncertain what economic motivation
anyone might have for exercising the call option and indicated to
Mr. Lerner and his representatives that “any explanation of such
motivations may leave unanswered questions in Paris”. Given this
problem, Mr. Geary added a paragraph 16 to a new draft of the
side letter agreement giving CLIS the right to require Rockport
Capital to purchase its Common II and Class B preferred
membership interests in SMP at prices tied to the liquidation
value of the Carolco securities. At the conclusion of the
drafting process, however, the parties did not execute the
interest option agreement and paragraph 16 was removed from the
side letter agreement.
117
The pertinent events and times for measuring the
contingent amount were set forth in detailed paragraphs in the
side letter agreement defining “the SN Liquidation Date,” “the SN
Measurement Date,” “the PS Measurement Date,” and “the PS
Liquidation Value.”
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provisions, CDR effectively tied up any value that might be
realized on the Carolco securities.
On the other hand, the Ackerman group was primarily
concerned with certain representations and warranties that they
wanted with respect to Generale Bank’s and CLIS’s tax basis in
the receivables and SMHC stock. This concern is apparent in an
early draft of the letter agreement, in which the Ackerman group
proposed:
3. Certain Representations and Warranties of CLIS
and GB. (a) CLIS hereby represents and warrants that
CLIS’s basis computed under United States Federal
income tax principles in the stock of Holdings is not
less than $________.
(b) GB hereby represents and warrants that GB’s
basis computed under United States Federal income tax
principles in the Note [SMHC’s $1.050 billion debt
obligations to Generale Bank] is not less than
$________.
Mr. Geary testified that he had never seen representations and
warranties like these. He found that these items were too
complicated and exposed Generale Bank and CLIS to all sorts of
liabilities. Consequently, he had these open-ended
representations and warranties removed. Later, the Ackerman
group proposed a “Rider 12A” to the exchange and contribution
agreement providing the following representation and warranty:
SMHC “shall not have made any payment on the Holdings-CLIS Debt
or Holdings-GB Debt and neither the Holdings-CLIS Debt nor the
Holdings-GB Debt has been written down for accounting or tax
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purposes.” In the final draft of the exchange and contribution
agreement, Generale Bank and CLIS warranted and represented that
they had received no payment of principal on the $974 million in
receivables and the $79 million receivable, respectively, and
that those receivables had not been written down for accounting
or tax purposes. Pursuant to this final draft, the Ackerman
group was entitled to indemnification from CDR of up to $10
million for any breaches of these representations or warranties.
b. Redemption and Liquidation Rights
Petitioner contends, however, that Generale Bank and CLIS
had an interest in maximizing their return from a redeveloped
SMHC. Petitioner points to the redemption rights (and ostensibly
the conversion rights) provided in the letter agreement and
distilled into the SMP LLC agreement. Under the SMP LLC
agreement, Generale Bank and CLIS were given conversion rights
for their preferred interests in SMP which were exercisable on or
after December 10, 2001.118 The preferred interests were
convertible into nonvoting Common II interests.119 In the event
that SMP received a conversion notice, it had the option to
redeem the preferred interests, in whole but not in part, at a
118
The agreement provided that the conversion right would be
immediately exercisable in the event SMP failed to make a certain
required distribution.
119
The preferred interests were convertible on a basis equal
to the “Convertible Percentage”, which the LLC agreement provided
would initially equal 45 percent.
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redemption price equal to the sum of the preferred capital
accounts for all holders of preferred interests.120 In explaining
the conversion feature, Mr. Lerner testified: “Credit Lyonnais
was very concerned that the company would become increasingly
valuable over the period of time that we were adding film
libraries to it, and they wanted the opportunity to convert from
a preferred stock position, which had fixed value plus return, to
a full equity position”. He added, “They were willing to let’s
say remain in a preferred position for awhile, but ultimately
they wanted the option to get more of the animal, which is to say
increase their interests to a level where they could participate
in what we thought would be the equity build up of the
investment.”
We cannot agree that the conversion right denotes any long-
term commitment on the part of Generale Bank and CLIS, or that it
otherwise lent economic substance to the banks’ purported SMP
interests. The conversion feature appears in the initial draft
term sheet that Shearman & Sterling prepared at the request of
Mr. Lerner. This item does not appear to have been an item that
was specifically negotiated by CDR or Mr. Geary or one that they
really cared about. Indeed, Mr. Geary testified that although
the conversion feature was always part of the deal between
120
Amendment No. 1 credited $3,125,000 to Generale Bank’s
preferred capital account and $1,875,000 to CLIS’s preferred
capital account.
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Rockport Capital and CDR, Generale Bank and CLIS were relying on
the side letter agreement because they did not want to have to
wait for the conversion of their preferred interests into common
stock which would take 5 years.
Furthermore, as explained below, when considered in
conjunction with SMP’s option to convert the banks’ preferred
interests into debt, it does not appear that the banks’
conversion feature would have been likely to provide any
meaningful inducement for the banks to remain in SMP.
c. SMP’s Conversion Option
SMP had the option to convert the banks’ preferred
interests, in whole but not in part, into debt of SMP. SMP could
exercise this conversion right any time on or after December 31,
1997 (the last date by which the banks could exercise their put
option). If the conversion right w exercised, the resulting debt
(so-called “preferred debt”) would have a $5 million principal
amount and a 5-year term; it would bear interest at an 8-percent
annual rate, payable annually from one year after the issuance of
preferred debt to the maturity thereof. If the conversion option
were exercised, SMP would have the option of redeeming the
preferred debt, upon 30 days’ notice, at 100 percent of the
principal amount ($5 million) plus any accrued and unpaid
interest.
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The preferred debt option effectively allowed Mr. Lerner to
control whether the banks would remain as partners in SMP beyond
the put period. If the banks did not exercise their put rights
by December 31, 1997, Mr. Lerner could convert the banks’
preferred interests into preferred debt at any time between
January 31, 1997, and December 10, 2001 (the date that the banks’
conversion rights would accrue). If SMP exercised the preferred
debt option, the result would be the economic equivalent of an
interest-free loan by the banks of the $5 million put purchase
price from December 31, 1996 (the date the banks could have
exercised their put rights and claimed the $5 million put price)
until the conversion of the preferred interests into preferred
debt. Taking into consideration the time value of money, the
banks would appear to have had every economic incentive to
exercise their put option as soon as possible, on December 31,
1996, for $5 million.121 If the banks remained in SMP beyond the
121
The SMP LLC agreement provided that each preferred
interest holder’s capital account would be credited with the
holder’s distributive share of “Net Income”. Under the LLC
agreement, SMP’s “Net Income” was allocated first to each holder
of preferred interests in an amount equal to 8 percent of the
balance of the holder’s preferred capital account on the last day
of the partnership’s fiscal year. It does not appear, however,
that these adjustments would have affected the put price: The
side letter agreement defines the put purchase price, in relevant
part, as an amount equal to: “the amount of the Preferred
Capital Account as described in the Limited Liability Company
Agreement of the Company and as in effect on the EC [exchange and
contribution agreement] Closing Date * * * for the original
holder or holders of such Preferred Interests”. We construe this
(continued...)
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put period, SMP could convert the banks’ membership interests
into preferred debt, and the banks’ potential payback would be
limited to the same $5 million that they could have received
almost immediately by exercising the put option.
Presumably, this conversion feature was of little concern to
the banks, because as we have found, they intended to exercise
their put option as soon as possible anyway. The debt conversion
feature would appear to have provided SMP added assurance,
however, that the banks would exercise their put option, which
was an essential part of the Ackerman group’s plan to acquire the
banks’ built-in losses.
d. Distribution Rights
Petitioner also points to certain distribution rights that
the banks were given in their preferred interests in SMP.
Amendment No. 1 to the SMP LLC agreement provided that SMP would
make annual distributions to its members of all “Excess Cash
Flow” according to the following priorities:
(i) First. The holders of Preferred Interests
shall receive pro rata in accordance with their
respective Preferred Capital Accounts the lesser of (x)
Excess Cash Flow and (y) an amount equal to 8% of the
balance of the Preferred Capital Accounts on the last
121
(...continued)
language to mean that the put price would equal the original $5
million credited to the banks’ preferred capital accounts,
unadjusted for any “Net Income” adjustments to those accounts
that might subsequently occur. With that being said, the banks
had no incentive to stick around until Dec. 31, 1997, as opposed
to Dec. 31, 1996.
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day of the Fiscal Year (such amount being referred to
herein as a “Full Distribution”) plus the sum of the
Unpaid Distributions with respect to any prior annual
distributions to such holders.[122]
(ii) Second. The holders of Common Interests
shall receive pro rata in accordance with their
respective Percentage Common Interests an amount equal
to Excess Cash Flow minus the amount of any
distributions made to holders of Preferred Interests
pursuant to paragraph (i) above.
Under the LLC agreement, the term “Excess Cash Flow” means, with
respect to any Fiscal Year:
(x) the sum of (1) Operating Cash Flow, (2) net cash
proceeds from the sale of any asset of the Company
other than in the ordinary course of business, (3) cash
proceeds of any payment in respect of debt owing to the
Company (including debts of Members or Affiliates of
Members) and (4) capital expenditures that the Company
committed to make in prior Fiscal Years but has
determined not to make, less (y) the sum of (1)
payments on any debt obligation of the Company and (2)
capital expenditures that the Company has committed to
make in the relevant period.[123]
Like the conversion rights, these distribution rights were
not a point of negotiation between the parties; the language
addressing these distribution rights appears to have been drafted
by Shearman & Sterling, on behalf of Rockport Capital. Because
122
With respect to any annual distribution made to holders
of preferred interests, the term “Unpaid Distribution” means:
“the amount equal to the Full Distribution minus the Excess Cash
Flow; provided, that such amount shall not be deemed to be an
Unpaid Distribution if such amount has been previously
distributed to holders of Preferred Interests.”
123
“Operating Cash Flow” is defined as: “the gross revenues
of the Company from its businesses that are actually received
less the expenses associated with such businesses that are
actually paid.”
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the distribution rights were contingent on SMP’s generating
excess cashflow, there was no guarantee that SMP would ever make
distributions. It was highly unlikely that SMP would generate
excess cashflow. In the first place, SMP was not an operating
company. As a practical matter, it could not and would not
generate operating cashflow; its only assets were the $20 million
in cash and the SMHC receivables and stock. SMP’s purported film
distribution business was in SMHC, a separate corporate entity
that was, by and large, devoid of assets and completely
insolvent. Inasmuch as Mr. Lerner controlled both SMP and SMHC,
if the banks failed to exercise their put rights, it is highly
unlikely that Mr. Lerner would allow SMP to generate excess
cashflow, triggering these distribution rights.124 Instead, if
SMHC were to generate any income, Mr. Lerner could effectively
lock up that income in SMHC, wait out the put period, and convert
the banks’ preferred interests into preferred debt, which could
then be redeemed for $5 million.
124
The LLC agreement appointed Mr. Lerner manager of SMP and
authorized him to manage the business and affairs of SMP. Mr.
Lerner was given the ability to act on behalf of SMP in
connection with its day-to-day affairs or otherwise. His powers
included, specifically, the power to convert the preferred
interests into preferred debt or to redeem the preferred
interests (in the case of conversion notice), and to appoint
employees, officers, or additional managers of SMP.
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e. Carolco Securities
Petitioner points to Generale Bank’s and CLIS’s interest in
receiving the future value of the Carolco securities that SMHC
held as evidencing economic substance in the banks’ preferred SMP
membership interests. Petitioner points out that even after
Generale Bank and CLIS exercised their put rights, SMP continued
to treat Generale Bank and CLIS as partners, sending those
entities Schedules K-1 for each year from the time the banks made
their contributions.
Generale Bank’s and CLIS’s retained interest in the Carolco
securities does not reflect a long-term commitment to SMP or SMHC
or lend substance to their purported membership interests.
Although the Carolco securities were to be held in SMHC, whatever
value might have been realized on the Carolco securities had
nothing to do with SMHC, SMP, or any prospective film
distribution business. Instead, Generale Bank and CLIS had tied
up whatever value that remained in the Carolco securities as a
contingent amount in their put purchase price.
Amendment No. 1 also gave the banks certain preferred
distribution rights to any value that might be realized from a
liquidation of the Carolco securities.125 Petitioner points to
125
With respect to the Carolco subordinated notes, Amendment
No. 1 provided that as promptly as practicable after the “SN
Liquidation Date”, SMP would distribute to holders of preferred
interests pro rata in accordance with their respective preferred
(continued...)
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these preferred distribution rights and claims that the existence
of these rights denotes some economic incentive on the part of
the banks to stay in SMP. Nonetheless, these preferred
distribution rights parallel, almost precisely, the terms of the
contingent put price for the banks’ preferred interests. They
afforded the banks no additional advantage from remaining in the
SMP partnership rather than exercising their put rights on
December 31, 1996--in either case, the banks would receive
whatever value might be realized on any liquidation of the
Carolco securities. Because we find that the banks had every
economic incentive to exercise their put rights, these preferred
distribution rights are irrelevant.
To the extent that petitioner may be suggesting that
Generale Bank and CLIS continued as partners in SMP because of
the contingent payment amount, we disagree. When Generale Bank
and CLIS exercised their put rights at the end of December 1996,
they divested themselves of whatever remaining interests they had
in SMP. The contingent payment amount was not a continuing
partnership interest; instead, that amount was part of an open
125
(...continued)
capital accounts the lesser of: (i) $7 million; and (ii) the “SN
Liquidation Value.” With respect to the Carolco preferred stock,
Amendment No. 1 provided that as promptly as practicable after
the “PS Liquidation Date”, SMP would distribute to the holders of
preferred interests pro rata in accordance with their respective
preferred capital accounts the lesser of: (i) $3 million, and
(ii) the “PS Liquidation Value”.
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transaction which was tied to Generale Bank’s and CLIS’s exercise
of the put rights. Moreover, the fact that SMP continued to send
Generale Bank and CLIS Schedules K-1 cannot obscure that those
entities effectively exited SMP on December 31, 1996. The only
question at that point was whether Generale Bank and CLIS would
receive any additional payment for their preferred interests on
account of the Carolco securities.
Petitioner points to a document entitled “Amendment No. 3”,
which provides that Generale Bank and CLIS, as the original
holders of the preferred interests in SMP, would have continuing
interests in certain annual distributions relating to the
liquidation of the Carolco subordinated notes and the Carolco
preferred stock that SMHC held.126 These distribution rights
closely track the distribution rights that were originally
provided in Amendment No. 1 and, likewise, parallel the
contingent put price in the side letter agreement.127 Insofar as
the exercise of the put rights already established the banks’
126
Apparently, on the basis of this document, Mr. Lerner, on
behalf of SMP, continued to send Schedules K-1 to Generale Bank
and CLIS.
127
Pursuant to the side letter agreement, Generale Bank and
CLIS were entitled to receive a “Contingent Amount” on the
exercise of their put rights. This contingent amount was payable
to the banks by Rockport Capital on (1) the “SN Liquidation Date”
in an amount equal to each seller’s percentage of the lesser of
$7 million and the “SN Liquidation Value” and (2) the “PS
Liquidation Date” in an amount equal to each seller’s percentage
of the lesser of $3 million and the “PS Liquidation Value”.
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rights to the contingent payment amount, as part of an open
transaction, the distribution rights in Amendment No. 3 are
redundant and unnecessary. The banks were already entitled to
any value that might be realized on the Carolco securities.
There was no need to “rejoin” SMP to receive their contingent put
price.
Further, it is unclear whether Generale Bank or CLIS ever
acceded to the execution of Amendment No. 3. Petitioner claims
that he executed this amendment to the SMP LLC agreement after
speaking to Mr. Jouannet sometime in 1997. Mr. Lerner claims
that he instructed his attorneys at Shearman & Sterling to
prepare this amendment, which he then signed as manager of SMP.
No representative of Generale Bank or CLIS signed this amendment.
There is no evidence that Generale Bank or CLIS was aware of this
amendment. Mr. Jouannet never asked Mr. Geary to review
Amendment No. 3, even though Mr. Geary testified that Mr.
Jouannet would have asked him to review such a document prior to
having CDR’s interest affected by it.
2. Economic Benefits for the Ackerman Group
“Economic substance depends on whether, from an objective
standpoint, the transaction was likely to produce economic
benefits aside from tax deductions.” Winn-Dixie Stores, Inc. v.
Commissioner, 113 T.C. at 285 (citing Kirchman v. Commissioner,
862 F.2d at 1492; Bail Bonds by Marvin Nelson, Inc. v.
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Commissioner, 820 F.2d at 1549). Courts have refused to
recognize the tax consequences of transactions which do not
appreciably affect the taxpayer’s beneficial interests except for
tax reduction. See, e.g., Knetsch v. United States, 364 U.S. at
366; ACM Pship. v. Commissioner, 157 F.3d 231, 248 (3d Cir.
1998), affg. in part, revg. in part, dismissing in part, and
remanding on other grounds T.C. Memo. 1997-115.
In exchange for the banks’ “contributions” to SMP, the
Ackerman group paid an upfront $5 million advisory fee to CLIS
and irrevocably agreed to purchase the banks’ preferred interests
for $5 million, which it placed in a blocked account upon the
closing of the transaction. As explained in greater detail
below, however, these inducements exceeded the value of the
contributions that the banks made to SMP. The SMHC receivables
and stock that Generale Bank and CLIS contributed to SMP did not
add any appreciable value to that enterprise. Any value that
might have existed in those contributed properties was contingent
on SMHC’s ability to generate income. All objective indications
are that SMHC had no such ability and could not reasonably have
been expected to have any such ability, without a mass infusion
of new capital.
At the time of the transaction between the banks and the
Ackerman group, SMHC held only three significant “assets”: (1)
The EBD film library; (2) the Carolco securities; and (3) large
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amounts of unused NOLs. On the basis of all the evidence in the
record, we conclude that none of these assets had any significant
value. The EBD film library was a “broken” collection of B film
titles with missing physical elements, a fragmented chain-of-
title history, and limited or expiring distribution rights. The
banks had effectively tied up any value that SMHC might realize
on the Carolco securities. Use of the NOLs in SMHC was dependent
on avoiding an ownership change for purposes of section 382 and,
more importantly, was dependent on SMHC’s generating income,
which could not occur without new capital.
Whatever intangible value might have arisen from the banks’
participation in the enterprise is obviated by the parties’
prearrangement and the economic reality (just discussed) that the
banks would exit the partnership as soon as possible--which they
did, 20 days into their purported film business with the Ackerman
group. Thus, given the absence of appreciable value in the
contributed properties and the banks’ intentions of exiting the
partnership, the objective realities of the transaction compel
the conclusion that, apart from tax benefits, the Ackerman group
had no reasonable expectation of recouping the $10 million they
paid the banks as an inducement to enter into the partnering
transaction. Consequently, the economic realities lead us to
conclude that this $10 million amount was paid, not as an
inducement for entering into the partnership, but for the $1.7
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billion in tax attributes that the Ackerman group acquired in the
transaction.
In the discussion that follows, we explain in detail the
basis for our conclusion that SMHC’s three assets (the EBD film
library, the Carolco securities, and the unused NOLs) had no
significant value at the time of the transaction in question.
3. EBD Film Library
The parties have offered expert witnesses to opine on the
value of the EBD film library at the time of the transaction in
question. As explained below, after carefully considering this
expert testimony, we conclude that the EBD film library had no
significant value at the time of the transaction in question.
a. Petitioner’s Expert
Steven L. Wagner is a principal at Deloitte & Touche. He
specializes in business valuation and issues relating to the
entertainment industry. Mr. Wagner is accredited by the
Association for Investment Research and Management as a chartered
financial analyst, is an accredited member (business valuation)
of the American Society of Appraisers, and has participated in
the financial advisory services industry for more than two
decades.
Mr. Wagner submitted an expert report appraising, as of
December 11, 1996, the 65 film titles that CLIS contributed to
SMHC on December 10, 1996. His report assumes: (a) That all the
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physical elements associated with the 65 film titles are
available, and (b) alternatively, that physical elements for only
some of the film titles are available. In estimating the fair
market value of the EBD film titles, Mr. Wagner relied upon the
income approach. Because of the market limitations associated
with B film titles, Mr. Wagner forecast income only for VHS
(Video Home System) sales into the rental market.
i. Income Projections
Mr. Wagner projected the number of gross units shipped per
film title on the basis of information obtained from Adams Media
Research (AMR), a media and entertainment data research firm.128
Mr. Wagner isolated the AMR data for 270 film titles that he
found to be comparable to the EBD film titles.129 Using
“STARmeter” ratings found on the “Internet Movie Database
(‘IMDb’),” Mr. Wagner then separated the 270 film titles into two
groups: (i) titles with more well-known actors; and (ii) titles
with lesser-known actors.130 He further categorized the 270 film
128
AMR provided information for film titles that were
released direct-to-video by independent distributors for the
period 1994 through Sept. 30, 1996.
129
Mr. Wagner assumed that the EBD film titles would be
comparable to film titles that were released direct-to-video by
independent studios.
130
According to IMDb, its STARmeter rankings provide a
snapshot of an actor’s popularity based on input from IMDb users;
the ratings are based on several statistical indicators,
including the frequency and number of people who access a
(continued...)
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titles according to genre (action, adventure, drama, horror,
science fiction, suspense, and thriller). Within each
categorization, he computed high, low, mean, and median units
shipped, as well as wholesale price statistics.
Mr. Wagner separated the EBD film titles into: (i) Titles
with more well-known actors and (ii) titles with lesser-known
actors. He categorized them according to genre. Using the
median gross units shipped from comparable film titles in the AMR
data, Mr. Wagner projected gross units shipped for the EBD film
titles.131
On the basis of discussions with industry participants, Mr.
Wagner projected that the unit return rate for units shipped to
the rental market would be 7.5 percent of the gross units
shipped. On the basis of the median wholesale prices per unit
for comparable AMR film titles, Mr. Wagner projected a $59
130
(...continued)
person’s web page or credits on the IMDb database. Mr. Wagner
analyzed IMDb’s STARmeter rankings using information from 2004.
131
Mr. Wagner applied a “discount” to the expected
performance of foreign-language films in the EBD film library.
He calculated this discount by comparing the average performance
of foreign-language films to various other genres and applying
this relationship (percentage of foreign-language units to other
genre units) to his film title categorizations. Mr. Wagner also
revised the data for film titles in the horror genre and the
well-known actors/action genre category to account for drops in
units shipped in those categories in 1996.
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wholesale price per unit for the EBD film titles.132 On the basis
of discussions with industry participants, Mr. Wagner opted for a
3-year release pattern (on average, just under two film titles
per month) for the EBD film titles.133 Mr. Wagner also opted for
an even release pattern for each title for each genre; i.e., if
there were 9 horror film titles, then 3 horror film titles would
be released each year. On the basis of discussions with industry
participants, Mr. Wagner determined that 80 percent of a film
title’s revenue would be received in the first year of release
and 20 percent would be received in the second year of release.
Incorporating these figures, Mr. Wagner computed gross sales
data for the EBD film library on title-by-title and year-by-year
bases.
ii. Cost Projections
Mr. Wagner projected costs for distributing the EBD film
titles including VHS conversion, duplication, distribution
(including shipping and packaging), cover art, and marketing
132
Mr. Wagner projected a lower $47 wholesale price per unit
for the less well-known actors/horror genre, because distributors
had lowered prices in 1996 to induce additional unit sales in
this category.
133
Mr. Wagner determined that for a typical release pattern,
a distributor releases up to three film titles per month
depending on the other film titles that the distributor is
releasing.
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costs.134 Mr. Wagner projected VHS conversion costs of $3,200 per
film title and duplication and distribution costs of $2.50 per
unit. On the basis of discussions with industry insiders,
including Michael Herz, Mr. Wagner projected cover art and
marketing costs as $7,500 per film title.
iii. Net Cashflows
To arrive at a net annual cashflow, Mr. Wagner deducted
total projected expenses from projected revenues for each EBD
film title. He then aggregated the net cash flows for the EBD
film titles to arrive at a net cashflow for the entire EBD film
library. He applied a 40-percent tax rate to come up with the
after-tax cashflows for the EBD film library.
iv. Valuations
Mr. Wagner discounted the after-tax cashflows to December
11, 1996, using a real weighted average cost of capital of 10
percent (rounded), arriving at a present value of $6.8 million
for the EBD film library. He also projected a $2.3 million
amortization tax benefit for the acquisition cost of the EBD film
library. Using these figures, Mr. Wagner calculated a $9.1
million value, as of December 11, 1996, for the 65 film titles in
the EBD film library. Alternatively, Mr. Wagner calculated a
134
In estimating these costs, he assumed that the buyer of
the EBD film library already had a distribution structure;
therefore, the costs associated with maintaining a distribution
structure were not included.
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$6.9 million value, as of December 11, 1996, for the 52 film
titles in the EBD film library with confirmed physical materials.
v. Market Approach
Mr. Wagner did not rely on a market approach to value the
EBD film library because of the difficulty in finding comparable
film libraries. Nonetheless, he reviewed several film and
television libraries that were sold in the 1990s: (1) In 1990,
MCA, Inc., sold 3,100 feature film titles and 14,000 TV episodes
to Matsushita Electric for $6.1 billion ($356,725 per title); (2)
in 1993, New Line sold 200 features to Turner Broadcasting for
$500 million ($2.5 million per title); (3) in 1995, Matsushita
Electric sold 3,200 features and 14,000 TV episodes to Seagram
Co., Ltd., for $5.7 billion ($331,395 per title); (4) in 1996,
Credit Lyonnais sold 1,500 features and 4,100 TV episodes to Mr.
Kerkorian for $1.3 billion ($232,143 per title); and (5) in 1997,
Orion/Samuel Goldwyn sold 2,000 features to MGM for $573 million
($286,500 per title).135 On the basis of this information, Mr.
Wagner concluded that the approximately $140,000 price per title
that he determined for the 65 EBD film titles “appears to be not
unreasonable.”
135
The film library that New Line sold to Turner
Broadcasting included the film titles: “Teenage Mutant Ninja
Turtles”, “Misery”, and “City Slickers”. The film library that
Orion/Samuel Goldwyn sold to MGM included the Academy Award-
winning film titles: “Amadeus”, “Platoon”, “Dances With Wolves”,
and “The Silence of the Lambs”.
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b. Respondent’s Expert
Richard L. Medress is the founder and president of Cineval,
LLC, an independent consulting practice that specializes in
theatrical and television film library valuations. Mr. Medress
has more than 15 years of experience in the entertainment
industry and has valued a number of major studio and independent
film libraries for owners, lenders, and potential investors.
Before establishing his own consulting business in 1995, Mr.
Medress was a vice president in the Entertainment Industries
Group and in the Corporate Finance Division at Chemical Bank (now
JP Morgan Chase). Mr. Medress is a member candidate of the
American Society of Appraisers.
Mr. Medress submitted an expert report appraising the 65 EBD
film titles, as of December 11, 1996, under two scenarios. Under
scenario 1, Mr. Medress assumed that SMHC owned the domestic home
video distribution rights to all 65 film titles, in perpetuity.
Under scenario 2, Mr. Medress adjusted his valuation for the
possibility that two of the film titles represent the same film,
and that the distribution rights to certain other film titles
expired shortly before or after December 11, 1996. Mr. Medress
relied on an income approach, forecasting income for VHS sales in
the rental market and in the sell-through market (i.e.,
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distributor’s sale of video units directly to retailers (e.g.,
Wal-Mart)).136
i. Income Projections
Mr. Medress prepared income projections for a 10-year period
from 1996 through 2006, on the basis of “reasonable assumptions
of demand” for the EBD film titles in 1996. Mr. Medress assumed
that most of the film titles in the EBD film library were
previously released in video in the United States, that demand
for the film titles was constrained by their age and their having
been previously exploited in video, and that the distribution of
many titles in the library was constrained by their sexual and
shock exploitation subject matter.137
In scenario 1, Mr. Medress projected 10 film titles in
rental and 55 film titles in sell-through. In scenario 2, Mr.
Medress projected 10 film titles in rental for each of the years
in the projection period, 47 sell-through film titles in 1997,
and 45 sell-through film titles for each of the years 1998
through 2006.138
136
Mr. Medress analyzed the possibility of distributing the
EBD film titles in DVD format; however, he concluded that
releasing those film titles in DVD format did not make economic
sense on the basis of the estimates in place in 1996.
137
According to Mr. Medress, certain video chains (e.g.,
Blockbuster) and retailers (e.g., Wal-Mart) would not stock film
titles of this nature.
138
Mr. Medress does not identify which 10 film titles from
(continued...)
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Mr. Medress assumed that in 1997 (the first full year after
SMP acquired SMHC) 500 units would be shipped for each of the 10
film titles distributed in the rental market, and that this
amount would decline by 2.5 percent per annum as the film titles
continued to age. For scenario 1, Mr. Medress divided the film
titles distributed in the sell-through market into 10 “Group 1”
film titles and 45 “Group 2” film titles. For scenario 2, Mr.
Medress divided the film titles distributed in the sell-through
market into 9 “Group 1” and 38 “Group 2” film titles for 1997,
and 9 “Group 1” and 36 “Group 2” film titles for 1998 through
2006. Mr. Medress assumed, in both scenarios, that 5,000 units
would be shipped for each of the “Group 1” film titles and 100
units would be shipped for each of the “Group 2” film titles, and
that after 1997 the unit shipments would decline by 2.5 percent
per annum.139
Having determined that shipments of rental units that had
been in release for some time would have a low return rate, Mr.
Medress assigned the EBD film titles a 5-percent return rate.
For the EBD film titles distributed in the sell-through market,
138
(...continued)
the EBD film library would be distributed in the rental market.
Typically, as the figures reflect, units sell at higher price
points in the rental market (e.g., $44.95) than in the sell-
through market (e.g., $7.99).
139
Mr. Medress does not explain his division of the EBD film
library into “Group 1” and “Group 2” film titles or identify
which film titles were placed into those respective groups.
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Mr. Medress assumed a 20-percent return rate, which he regarded
as “typical of sell-through product.”140
Because of the age of the EBD film titles, Mr. Medress
selected a $44.95 wholesale price for rental units, which was at
the lower end of the range for direct-to-video titles released by
independent studios. On the basis of his industry knowledge, Mr.
Medress used a $7.99 wholesale price for sell-through units.
Mr. Medress did not incorporate a release pattern into his
projections; he assumed that income would be received evenly over
his 10-year projection period (with the exception of the annual
2.5-percent decay rate discussed above).
Incorporating these figures, Mr. Medress computed gross
sales data for the EBD film library on a year-by-year basis.
ii. Cost Projections
On the basis of his industry knowledge, Mr. Medress
projected $2.75 in manufacturing, packaging, and shipping costs
per unit and marketing costs equal to 10 percent of gross sales.
Mr. Medress also projected administrative overhead at what he
140
Mr. Medress assumed that 98 percent of returned units
would be recycled into sales; he made an adjustment in the
following year for the manufacturing costs of the returned units.
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termed an “appropriate” rate of 10 percent of gross sales.141
Mr. Medress did not project any conversion costs.
iii. Net Cashflows
After deducting manufacturing, packaging, shipping, and
marketing costs, Mr. Medress derived net receipts for the EBD
film library from its projected distributions in the rental and
sell-through markets for each of the years in the 10-year
projection period. Mr. Medress combined the net receipts for the
rental and sell-through distributions and subtracted his
projected overhead from these yearly figures.
Mr. Medress calculated a terminal value for the EBD film
library based on projected cashflows for 2006, assuming that
units shipped would continue to decline beyond 2006 at an annual
rate of 2.5 percent. Mr. Medress then computed the total
cashflows for each year in his projection period, including the
terminal value of the EBD film library in his 2006 projections.
Mr. Medress applied a 44.5-percent (combined Federal and New York
State) tax rate and added an amortization tax benefit for each of
141
Mr. Medress projected overhead for the EBD film library
at a rate that he regarded as “typical” of a small distribution
company. He assumed that the EBD film library was, or would be,
part of a business that distributed other films, resulting in
lower overhead costs.
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the years in his projection period to arrive at net after-tax
cashflows.142
iv. Valuations
Mr. Medress determined the present value of future cashflows
using a discount rate of 11.8 percent calculated on an industry
basis with the buildup method, adjusting for inflation, company
size, and the fact that a film library of completed film titles
does not have the same business risk as the full range of
business activities of companies engaged in film production and
distribution.
Under scenario 1, Mr. Medress concluded that the fair market
value of the 65 EBD film titles, as of December 11, 1996, was
$1.6 million (rounded). Under scenario 2, Mr. Medress determined
that the fair market value of the EBD film titles, as of December
11, 1996, was $1.5 million (rounded).
v. Market Approach
Mr. Medress did not use a market approach in valuing the EBD
film library. Nonetheless, as a reality check on his
conclusions, he compared the average value per title from his
analysis ($24,219) with the average price per title from the sale
of the LIVE Entertainment film library ($68,000), which occurred
approximately 4 months after December 11, 1996. Mr. Medress
142
Mr. Medress amortized the projected purchase price for
the EBD film titles on a pro rata basis according to the
projected gross receipts from the film titles.
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opined that the $68,000-price per title represents: “an amount
that investors were willing to pay for a library that included
many titles that were significantly stronger than the titles in
the SMHC Film Library.” In considering the lesser quality of the
EBD film titles, Mr. Medress concluded that his estimate of
$24,219 per title for the EBD film rights appeared reasonable.
c. Court’s Analysis
i. Reconciliation of Expert Opinions
Both experts used an income approach, a discounted cashflow
analysis, in valuing the EBD film rights. In their discounted
cashflow analyses, both experts made sales projections based on
the number of VHS units shipped in the rental or sell-through
market. In valuing the EBD film rights, both experts relied on
information from AMR and the IMDb database. Both experts assumed
that SMHC had no responsibility for residual payments to guilds,
participations to talent, or shares to producers.
Neither expert relied on projections for sales in the DVD
format. Neither expert relied on the revenue-sharing pricing
model (Rentrak) for the rental market that evolved after 1996.
Neither expert considered direct sales of videos via the
Internet. Neither expert assigned any value to the 26
development projects or the sequel rights to any of the EBD film
titles.
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Mr. Wagner and Mr. Medress are reasonably close in their
estimated return rates (7.5 percent vs. 5 percent, respectively)
for distributed units in the rental market. Mr. Wagner does not
question Mr. Medress’ estimated 20-percent return rate for
distributed units in the sell-through market. The experts do not
question each other’s weighted average cost of capital, discount
rate, or tax rate figures. The experts are also in basic
agreement as to manufacturing, packaging, and shipping costs
($2.50 per unit to $2.75 per unit); however, they disagree on
marketing costs and whether, and to what extent, overhead expense
should be considered. In making his income projections, Mr.
Medress considered the sexual and shock exploitation nature of
some of the EBD film titles; Mr. Wagner did not. The experts
express general disagreement regarding their respective
methodologies and what assumptions should be considered in
projecting an income stream for the EBD film titles.
ii. Exclusion of Certain Film Titles
Both experts present alternative valuations that exclude
certain film titles from the EBD film library. With respect to
some film titles, their exclusions overlap.
Relying on the records that Troy & Gould obtained, Mr.
Wagner determined that the following 13 film titles in the EBD
film library did not have confirmed physical materials: “Alley
Cat”, “Bombay Talkie”, “Cardiac Arrest”, “Courtesans of Bombay”,
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“Escape from Venice”, “Equinox”, “Mother & Daughter: Loving War”,
“Nasty Hero”, “Outlaw Force”, “Sticks and Stones”, “Throne of
Vengeance”, “War Cat”, and “Zombie”.143 On the record before us,
we believe that the absence of physical materials for these film
titles is a fact that was reasonably discoverable on December 11,
1996. We also believe that the hypothetical willing buyer would
not have paid for rights to film titles that did not have
confirmed physical materials. Consequently, our valuation of the
EBD film library does not account for the 13 film titles that Mr.
Wagner identified as not having confirmed physical materials.
In making his scenario 2 projections, Mr. Medress excluded 9
film titles, including: “Bombay Talkie”, “Courtesans of Bombay”,
“Danger Zone”, “Hullabaloo Over Georgia”, “Hunter’s Blood”,
“Mother & Daughter: Loving War”, “Octavia”, “Shakespeare Wallah”,
and “Sticks and Stones”.144 An internal memorandum that Troy &
Gould prepared during its due diligence confirms that the
distribution rights to those film titles were set to expire
143
Mr. Wagner made no sales projections for the film titles
“Escape from Venice” and “Equinox”, because those film titles
were not included in the IMDb database. In addition, Mr. Medress
treated the film titles “Return of the Conqueror” and “Throne of
Vengeance” as the same film in making his scenario 2 projections.
From other information that Mr. Medress submitted, it also
appears that the film titles “Equinox” and “The Beast” may be the
same film.
144
We have already excluded the film titles “Bombay Talkie”,
“Courtesans of Bombay”, “Mother & Daughter: Loving War”, and
“Sticks and Stones” because of the absence of confirmed physical
materials for those film titles.
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before or shortly after December 11, 1996. The Troy & Gould
memorandum indicates that the distribution rights to the film
title “Danger Zone” were set to expire on or about January 26,
1997; that the distribution rights to the film titles “Bombay
Talkie”, “Courtesans of Bombay”, “Hullabaloo over Georgia”, and
“Shakespeare Wallah” were set to expire on or before October 24,
1996; that the distribution rights to the film title “Hunter’s
Blood” were set to expire on or about June 3, 1997; that the
distribution rights to the film title “Mother & Daughter: Loving
War” were set to expire no later than March 31, 1997; that the
distribution rights to the film title “Octavia” were set to
expire on or about March 7, 1996; and that the distribution
rights to the film title “Sticks and Stones” were set to expire
on or about January 12, 1995.145 In the Court’s view, a
hypothetical willing buyer would not pay for rights that were
expired or expiring. Since this information was reasonably
discoverable as of December 11, 1996, we exclude the film titles
that Mr. Medress identified from our valuation of the EBD film
library.146
145
This information from Troy & Gould is consistent with
John Peters’s testimony that, on the instructions of CDR or EBD,
he selected film titles with rights that were expired or
expiring.
146
Petitioner contends that even if the rights to some of
the EBD film titles “expired within two years after the
transaction, there would still be some value to those rights on
(continued...)
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iii. Analysis of Expert Opinions
In projecting gross units shipped for the EBD film titles,
Mr. Medress selected arbitrary figures: In the rental market,
500 units for each film title; and in the sell-through market,
5,000 units for “Group 1” film titles and 100 units for “Group 2”
film titles. Mr. Medress indicates that he relied on his
industry experience in arriving at these figures; however, he
does not specifically explain how he derived the figures on that
basis. Mr. Medress also indicates that he incorporated into his
projections certain assumptions relating to the previous
distribution history and certain characteristics (such as age and
content) of the EBD film titles; he fails to explain, however,
precisely how these assumptions influenced or justified his
projections.
Moreover, Mr. Medress does not indicate which film titles he
considered for distribution in the rental and the sell-through
markets, and which film titles are in “Group 1” and “Group 2.”
He does not explain the method that he used to divide the film
titles into groups or what accounts for the vast difference in
146
(...continued)
the transaction date.” Petitioner provides no evidentiary basis
for his contention, which appears to rest on speculation. We are
not persuaded by petitioner’s contention. It is reasonable to
assume that a hypothetical buyer would not pay any significant
amount for rights that were subject to such an attenuated
distribution period, especially with film titles that were
admittedly older “B” film titles.
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units shipped between “Group 1” and “Group 2” film titles (5,000
units vs. 100 units, respectively). Mr. Wagner, on the other
hand, made his income projections by comparing data from AMR,
using IMDb database star ratings and genre categorizations.
Although Mr. Wagner relied on objective data to reach his
conclusions, his valuation fails to consider certain factors that
we find relevant to the valuation of the EBD film titles. First,
in making his projections, Mr. Wagner assumed that none of the
EBD film titles had been previously distributed.147 Mr. Medress,
on the other hand, assumed that most of the EBD film titles had
been released in video in the United States before 1996. In
making these assumptions, both experts researched existing
databases of film distribution information and other sources.
Mr. Wagner found no record of previous unit sales for the EBD
film titles in the rental market but admits that “it is not
possible to precisely ascertain whether the titles are in the
147
In his rebuttal report, Mr. Wagner claims that he treated
the EBD film titles as if they were near the middle of their
lifespan; i.e., factoring in some level of previous distribution.
Nonetheless, in making his income projections, Mr. Wagner relied
on AMR data, which provides information only for initial release
shipments and seemingly does not factor in any previous
distribution of AMR film titles. Mr. Wagner suggests that he
factored in the age of the EBD film titles by relying on the
median, rather than the higher mean, gross units shipped that he
gleaned from the AMR data. We are not convinced that Mr.
Wagner’s use of the median gross units shipped data somehow
compensates for the age of the EBD film titles. Indeed, Mr.
Wagner points out that the mean figures were higher because a few
of the AMR film titles did well, driving the mean beyond the
median.
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early or late portion of their lifespan.” Mr. Medress found
incomplete and unsatisfactory information regarding the
distribution history of the EBD film titles in both the rental
and sell-through markets. Mr. Medress determined, however, that
most of the EBD film titles were previously distributed, relying
on a number of different sources.
Mr. Medress relied on a letter from Michael Herz, on behalf
of Troma, to Troy & Gould which identified previous distributors
of 37 EBD film titles. These film titles included: “Alley Cat”,
“Astro Zombies”, “Avenger”, “The Beast”, “Bombay Talkie”,
“Cardiac Arrest”, “Courtesans of Bombay”, “Danger Zone”, “Escape
from Hell”, “Fear”, “Firefight”, “Fist of Fear, Touch of Death”,
“Headless Eyes”, “House of Terror”, “Hullabaloo Over Georgia”,
“Hunter’s Blood”, “Invisible Dead”, “Mother & Daughter: Loving
War”, “Nasty Hero”, “Ninja Hunt”, “Ninja Showdown”, “Ninja
Squad”, “Oasis of Zombies”, “Octavia”, “Outlaw Force”, “Platypus
Cove”, “Plutonium Baby”, “Shakespeare Wallah”, “Sidewinder One”,
“Summer Camp Nightmare”, “Terror on Alcatraz”, “This Time I’ll
Make You Rich”, “Tiger of the Seven Seas”, “To Love Again”, “The
Visitants”, “White Ghost”, and “Zombie”. Mr. Medress also
searched the IMDb Pro database and found that the following film
titles had also been previously distributed: “Banana Monster”,
“Battle of the Last Panzer”, “Blood Brothers”, “Crimson”,
“Demoniac”, “Duel of Champions”, “Equinox”, and “Return of the
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Zombies”.148 Finally, Mr. Medress purchased 47 used video tapes
of EBD film titles; the packaging materials indicated that those
film titles were distributed prior to 1996. The film titles
included:
Alley Cat Mother & Daughter: Loving War
Astro Zombies Nasty Hero
Avenger Ninja Hunt
Banana Monster Ninja Showdown
Battle of the Last Panzer Ninja Squad
Battle of the Valiant Oasis of Zombies
Bombay Talkie Octavia
Cardiac Arrest Outlaw Force
Courtesans of Bombay Platypus Cove
Crimson Plutonium Baby
Danger Zone Return of the Zombies
Demoniac Shakespeare Wallah
The Beast Sidewinder One
Erotikill SS Experimental Love Camp
Escape from Hell Summer Camp Nightmare
Fear Terror on Alcatraz
Firefight This Time I’ll Make You Rich
Fist of Fear, Touch of Death To Love Again
Fraulein Devil Tormentor
Headless Eyes The Visitants
House of Terror War Cat
Hullabaloo over Georgia White Ghost
Hunter’s Blood Zombie
Invisible Dead
Insofar as any of the EBD film titles were previously
released to the rental market, we believe that this would have a
significant effect on demand for those film titles and also would
148
Mr. Medress obtained point-of-sales data from Nielsen
VideoScan for 11 of the EBD film titles; however, his agreement
with that company precludes him from revealing the film titles.
Mr. Medress also reviewed the Video Source Book editions for
1985, 1987, 1989, 1992, and 1996, which indicated that 60 of the
EBD film titles were listed as available in 1992 or earlier.
Mr. Medress indicates that the Video Source Book is consistent
with the information he obtained from other sources.
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tend to influence their distribution to the sell-through market
at lower price points as opposed to the rental market with its
higher price points. For this reason, Mr. Wagner’s expert report
grossly overstates the income projections for the EBD film
titles.
We were also troubled by Mr. Wagner’s assumptions that 80
percent of the projected revenues from the EBD film library would
be generated in the film title’s first year of release and 20
percent would be generated in the second year of release. Mr.
Wagner’s assumptions effectively frontload his unit projections
into the first 2 years of distribution. In combination with his
3-year release pattern, these assumptions have the effect of
projecting all cashflows for the EBD film library into a 4-year
period (1997, 1998, 1999, and 2000). Since we are not persuaded
that the hypothetical willing buyer of the EBD film library would
distribute all the EBD film titles in so short a period, we are
led to conclude that Mr. Wagner’s revenue assumptions overstate
the present values of projected cashflows from the EBD film
library.
Mr. Wagner assumed a median $59 wholesale price for the
rental market, whereas Mr. Medress used a $45 wholesale price at
the lower end of the spectrum of wholesale prices. Given the age
and nature of the EBD film rights, Mr. Medress’ lower wholesale
price is more reasonable.
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Mr. Wagner determined that the film titles in the EBD film
library were produced “several” years before the valuation date.
Specifically, three of the film titles were produced in the
1950s, 12 in the 1960s, 25 in the 1970s, 24 in the 1980s, and 1
in the 1990s:
Alley Cat 1982 Invisible Dead 1971
Astro Zombies 1967 Jungle Master 1972
Auditions 1995 Mother & Daughter: Loving War 1980
Avenger 1961 Nasty Hero 1987
Banana Monster 1971 Ninja Hunt 1987
Battle of the Last Panzer 1969 Ninja Showdown 1987
Battle of the Valiant 1963 Ninja Squad 1987
Beast, The 1971 Oasis of Zombies 1983
Blood Brothers 1974 Octavia 1984
Blood Castle 1971 Outlaw Force 1987
Bombay Talkie 1970 Platypus Cove 1986
Cardiac Arrest 1980 Plutonium Baby 1987
Carthage in Flames 1959 Return of the Conqueror 1964
Cold Steel for Tortuga 1965 Return of the Zombies 1973
Conqueror and the Empress 1964 Shakespeare Wallah 1965
Courtesans of Bombay 1985 Sidewinder One 1977
Crimson 1973 SS Camp 5 1976
Danger Zone 1951 SS Experimental Love Camp 1976
Demoniac 1974 Sticks and Stones 1970
Duel of Champions 1961 Summer Camp Nightmare 1987
Equinox 1971 Terror on Alcatraz 1986
Erotkill 1973 The Sword & The Cross 1958
Escape from Hell 1979 The Visitants 1988
Escape from Venice 1979 This Time I’ll Make You Rich 1975
Fear 1988 Throne of Vengeance 1964
Firefight 1987 Tiger of the Seven Seas 1963
Fist of Fear, Touch of Death 1981 To Love Again 1980
Fraulein Devil 1977 Tormentor[s], The 1971
Headless Eyes 1971 War Cat 1987
House of Terror 1972 White Ghost 1986
Hullabaloo over Georgia 1978 White Slave 1986
Hunter’s Blood 1987 Zombie 1979
Invincible Gladiators 1964
It is clear from these production dates and Mr. Wagner’s
observations that the EBD film library represented a library of
older film titles. Both experts agree that older film titles,
except perhaps for classics, would be less in demand than recent
productions.
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In making his income projections, Mr. Wagner considered the
age of the EBD film titles in choosing between the higher mean
and lower median gross units shipped from the AMR data:
“Typically, this step in the process would have been performed
using the mean. However, the SMH titles were older; and
therefore; the number of gross shipments was determined to be
lower than the mean indication from the AMR data.” On this
basis, Mr. Wagner used the median gross units shipped and median
wholesale prices per unit that the AMR data suggested.
Nonetheless, it appears that most, if not all, of the 270 film
titles in the AMR data were recently produced. For this reason,
we are not persuaded that choosing the median over the mean gross
units shipped and wholesale prices per unit from the AMR data
properly accounts for the age of the EBD film titles. Instead,
the age of the EBD film titles suggests that the gross units
shipped and wholesale prices per unit for those film titles would
be at the lower end of the spectrum of the AMR data. Insofar as
Mr. Wagner relies on the median data, he has overstated his
projections.
Although Mr. Wagner did not assume any theatrical releases
(e.g., releases to movie theaters) in his expert report, in his
rebuttal report he points to certain data indicating that 16 of
the EBD film titles were theatrically released in the U.S.
domestic market and 22 of the film titles were theatrically
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released in the international market.149 Mr. Wagner did not
incorporate this data into his valuation analysis; however, he
posits that these theatrical releases would enhance his valuation
of the EBD film titles because of increased consumer awareness.
After examining the additional data that Mr. Wagner presented, we
cannot agree.
Mr. Wagner’s data indicates that all but one of the domestic
theatrical releases occurred between 1951 and 1980. The only
exception is “Summer Camp Nightmare,” which had an April 1987
release date. Likewise, most of the international theatrical
releases occurred between 1960 and 1979. Two films were released
in 1983, two in 1985, and one (“Nasty Hero,” which has no
confirmed physical materials) in 1992 . Given the significant
time period between these supposed theatrical releases and 1996,
we are not convinced that the film titles would have benefited
from a theatrical release. Moreover, we are not convinced that
the international theatrical release of admittedly “B” film
titles would translate into increased consumer demand in the U.S.
domestic market.
iv. Conclusion
In general, we found both expert opinions unsatisfactory.
On the one hand, Mr. Medress’ methodology contains considerable
149
Mr. Wagner found data for two other theatrical releases
but could not determine whether those film titles were released
to the domestic or international market.
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gaps; for instance, he fails to explain certain important
assumptions and conclusions. Mr. Medress’ methodology appears
highly subjective. On the other hand, Mr. Wagner’s methodology
offers an objective basis for estimating the initial gross units
shipped for the EBD film titles; however, his income projections
are highly overstated. Importantly, Mr. Wagner did not account
for any previous distribution of the EBD film titles.
Despite our misgivings about Mr. Medress’ methodology, we
are persuaded that his income projections for the EBD film titles
are more realistic than Mr. Wagner’s highly overstated
projections. If we were relying solely on the expert opinions,
we would conclude that the EBD film rights had a value as of
December 11, 1996, which did not exceed the value Mr. Medress
determined in his scenario 2; i.e., $1.5 million. Nonetheless,
we find that certain additional factors, which the experts did
not consider, indicate a much lower value.
In making their respective valuations, both experts were
hampered by the lack, or inconsistency, of information relating
to the EBD film titles. Neither expert inspected the physical
materials for the EBD film titles. Neither expert considered
whether the existing physical materials were capable of
reproduction. Neither expert considered the impact of chain-of-
title and copyright issues relating to the EBD film titles. The
record demonstrates, however, that there were significant gaps in
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the chain-of-title for most, if not all, of the EBD film titles.
Even a cursory review of available information as of December 11,
1996, would have demonstrated these gaps. Moreover, CLIS’s
contribution of the film rights to SMHC and the transfers leading
up to that contribution do not establish specifically what rights
SMHC obtained in the EBD film titles. In the Court’s view, a
hypothetical willing buyer either would have demanded some
reasonable assurance of SMHC’s rights in the EBD film titles or
would have required a substantial discount to account for the
gaps in the chain-of-title and possible liabilities for illegal
distribution.150
At trial, John Peters of Epic Productions testified
regarding the nature and the condition of the EBD film titles
that CLIS contributed to SMHC. Mr. Peters was charged with
selecting the EBD film titles for CLIS’s contribution to SMHC; he
was instructed to select film titles that would not affect the
overall value of the CDR library. He selected films that had
very little value, films with distribution rights that were set
150
Bahman Naraghi, who has considerable experience in the
filmed entertainment business, testified that a company’s rights
in its motion pictures play a critical part in the filmed
entertainment business, because “That’s what is valued.” He
testified that chain-of-title confirms the validity of those
rights and provides the basis for proper copyright filing and
protection of copyrights. He testified that copyrights secure
the fundamental rights on any given film title in the form of
intellectual property in all jurisdictions of the world that
observe copyright laws and, therefore, guarantee the right to
receive income derived from the exploitation of film rights.
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to expire, and low-budget exploitation-genre films. Mr. Peters
selected only the “U.S. Video Film Rights” for the EBD film
titles. Mr. Peters testified that many of the physical materials
for the EBD film titles were stored at the Epic warehouse, a
facility that was not secured and was not temperature- or
humidity-controlled. Mr. Peters’s testimony and his unique
knowledge of the nature and condition of the EBD film titles
seriously undermine petitioner’s position that the EBD film
titles had a value in the range of $6.9 to $9 million.
The veracity of Mr. Peters’s testimony is confirmed by
SMHC’s treatment of the EBD film titles following their
contribution. SMHC, as the purported owner of the EBD film
rights, did not regard those film rights as having any value.
Indeed, following CLIS’s contribution of the EBD film library to
SMHC, SMHC reported on its draft financial statements for the
period ended December 10, 1996, that the value of the EBD film
library was not material to its financial statements.151 In a
151
Petitioner contends that SMHC’s financial statements are
not relevant to the valuation of the EBD film rights, because the
financial statements were completed after Dec. 11, 1996. SMHC’s
financial statements correspond to the period ended Dec. 10,
1996, and presumably reflect SMHC’s treatment of the EBD film
rights during that time period. Although the financial
statements were completed after Dec. 10, 1996, financial
statements are invariably completed after the financial period to
which they relate. Petitioner points to no event that changed
the value of the film rights between Dec. 10, 1996, and the date
the financial statements were completed. We find that SMHC’s
treatment of the EBD film library on its financial statements is
(continued...)
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document entitled: “Accounting in Santa Monica Holdings Book”,
dated June 1, 1997, Bruno Hurstel of CDR reiterated that CLIS’s
contribution of the EBD film library to SMHC on December 10,
1996, was “without amount”. Also, consistent with its accounting
of the contribution, SMHC did not list the EBD film rights as an
asset of value on its corporate tax return for the period October
9 to December 31, 1996.152
These additional factors indicate that the EBD film rights
had very little, if any, value and were in an unsatisfactory
condition when they were transferred from CLIS to SMHC. In light
of the expert opinions and these additional factors, we conclude
that the EBD film rights had no material or consequential value
as of December 11, 1996.
Petitioner claims that the EBD film rights still have
considerable value. The record does not bear out this claim.
The Ackerman group and Troma have realized little or nothing on
the EBD film rights. SMP and SMHC distributed none of the EBD
151
(...continued)
a relevant consideration in determining the value of the EBD film
library as of Dec. 11, 1996.
152
In fact, in 1997, Mr. Lerner was willing to sell a 25-
percent interest in SMP to Imperial for $5 million. Mr. Lerner
represented to Imperial that SMP had “assets totaling $49 million
(with zero liabilities) including: $29 million in film library
assets (appraised value) and $20 million in cash[.] ICII’s 25%
share of the assets would equal approximately $12.25 million, a
multiple of the proposed investment”. The $5 million sale price,
however, effectively represented 25 percent of the $20 million
cash asset with no value assigned to the film assets.
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film titles. Troma distributed 6 of the film titles but with
very little success. For example, Troma began distributing
“Battle of the Last Panzer” on May 25, 1999, and had $2,034.71 in
total VHS sales through 2000 and $182.97 during 2001. Troma
began distributing “Escape from Hell” on May 25, 1999, and had
$6,496.64 in total VHS sales through 2000 and $3,867.24 during
2001. It had $10,726.90 in total DVD sales during 2000 and
$2,529.23 during 2001.153 Troma began distributing “Plutonium
Baby” on October 24, 2000, and had $767.98 in VHS sales through
2000 and $66.48 during 2001. Realization of these amounts would
hardly justify the distribution expenses that Troma likely
incurred.154
4. Carolco Securities
The parties dispute whether the Carolco securities had any
value as of December 11, 1996. Petitioner contends that as of
December 11, 1996, the Carolco securities had some indeterminable
value, perhaps as high as $10 million. Respondent contends that
153
From these figures, it appears that the EBD film titles
had higher sales figures when they were distributed in DVD
format. Although DVD format was foreseeable in 1996, its
potential was still virtually unknown. For that reason, none of
the experts in these cases relied upon DVD sales in valuing the
EBD film library.
154
On Nov. 4, 1996, Troma sent an invoice to Crown Capital
requesting $103,025 for the release of video and DVD for “Banana
Monster”, “Fist of Fear, Touch of Death”, “Astro Zombies”,
“Battle of Last Panzer”, and “Escape from Hell”.
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the Carolco securities had no value. As explained below, we
agree with respondent.
By November 1995, Carolco faced serious financial
problems.155 Once a powerhouse in motion picture production, in
1995 and 1996 Carolco was insolvent and unable to continue movie
production. Its 1993 financial restructuring had proven
unsuccessful, and Carolco decided to sell its film library,
certain projects, and its movie studio. In the fall of 1995,
Carolco accepted a $47.5 million offer from Twentieth Century
Fox, foreclosing any possibility of Carolco’s continuing as a
going concern. On November 10, 1995, Carolco filed a chapter 11
bankruptcy petition.156
Prior to December 11, 1996, the Debtors’ and Creditors’
Committee had filed its first and second plans of
155
For example, Carolco’s consolidated balance sheets for
1993 and 1994, show that liabilities exceeded assets, thereby
indicating negative net worth. These balance sheets also show
that the total stockholders’ deficiency (negative net worth)
increased from $21.07 million in 1993 to $64,521,000 million in
1994. Carolco’s consolidated statements of operations for 1993
and 1994, show net losses of $63,958,000 million in 1993 and
$43,451,000 million in 1994. Carolco’s consolidated statements
of cashflows for 1993 and 1994, show that net operating cashflow
was negative $6,322,000 for 1993 and negative $47,113,000 for
1994.
156
In the bankruptcy proceedings, Canal+ made a $58 million
offer for Carolco’s assets, which the bankruptcy court
subsequently approved on Mar. 21, 1996.
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reorganization.157 Under each of those plans, the holders of
Carolco subordinated notes were in class 10 and the holders of
Carolco preferred stock were in class 12. In the planned
liquidation of Carolco, holders of class 10 and 12 assets were to
receive nothing. According to the second plan of reorganization,
the liquidation of Carolco commenced with the sale of the Carolco
film library and continued with the sale of certain projects,
Carolco’s studio, and other assets. As a result of the sale of
these items, Carolco would hold approximately $60 million cash,
which was the largest asset in the bankruptcy proceeding. Other
than this cash asset, the only remaining assets of significant
value were certain projects and litigation claims. A disclosure
statement accompanying the second plan of reorganization dated
December 3, 1996, presented three scenarios showing a range of
possible outcomes from the Carolco liquidation. Carolco
estimated that under any of the three scenarios, class 9 through
13 creditors, including holders of the Carolco securities, would
receive nothing from the bankruptcy. Considering the information
available as of December 11, 1996, it was highly unlikely that
SMHC would recover anything on the Carolco securities. Clearly,
the plans of reorganization and the disclosure statement (which
157
The first plan of reorganization was filed on Sept. 13,
1996, and the second plan of reorganization was filed on Dec. 3,
1996.
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projected a “best case” scenario for the Carolco liquidation)
showed no recovery at all to the holders of Carolco securities.
On SMHC’s draft financial statements for the period ended
December 10, 1996, it reported a charge of $60,075,000, which was
the entire carrying value of the Carolco securities, and
indicated that the purpose for this charge was to write down the
Carolco securities to net realizable value due to the bankruptcy
of Carolco.158 In a June 1, 1997, accounting of SMHC’s book
accounts, Mr. Hurstel reiterated that there was a contribution by
MGM Holdings of the Carolco securities to the capital of SMHC;
however, this contribution was accounted for on SMHC’s books as
“without amount”. Similarly, on SMHC’s corporate income tax
return for the taxable period October 9 to December 31, 1996, the
Carolco securities were not listed as assets on Schedule L,
Balance Sheets, as of December 31, 1996.159 SMHC’s reporting
158
The draft financial statements state:
The aggregate carrying value of these securities on the
date contributed was $60,075,000. As Carolco is
currently in bankruptcy proceedings, the Company has
recorded a charge of $60,075,000 in these consolidated
financial statements reflecting the write-down of these
securities to net realizable value.
159
After CDR ceded control of SMHC’s tax return filing
obligations and after the bankruptcy court had confirmed the
fourth amended plan of reorganization, Mr. Lerner commenced
reporting the Carolco securities as assets with value on SMHC’s
corporate tax returns. For example, on SMHC’s corporate income
tax return for the year ended Dec. 31, 1997, the Carolco
securities were shown as an asset in the ending balance column of
(continued...)
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position confirms our understanding of the value of the Carolco
securities on December 11, 1996.
Petitioner nonetheless claims that there was some chance of
recovery on that date, and that the Carolco securities had value.
Petitioner first contends that the holders of the Carolco
securities had the right to object to confirmation of the plan of
reorganization on any grounds that might cause it not to be
confirmed. See 11 U.S.C. sec. 1128(b) (2000) (a party in
interest may object to confirmation of a plan of reorganization).
According to petitioner, “An objection could be made on ‘any
ground,’ and it is possible that a creditor or interest holder
could negotiate a better return or distribution from the plan in
return for dropping its objection, even if it were a nuisance
settlement.” Petitioner’s assertions appear to be nothing more
than speculation. We cannot agree that SMHC’s right to object to
any plan of reorganization necessarily equates with some element
of “real value” in the Carolco securities.
Petitioner also points to a report from Harch Capital
Management, Inc. (Harch Capital), dated December 3, 1996, which
concluded that the Carolco subordinated notes could have a value
between $4 million and $6 million, and the Carolco preferred
159
(...continued)
Schedule L. On SMHC’s corporate income tax return for the year
ended Dec. 31, 1998, the Carolco securities are shown in both the
beginning and ending balance columns of Schedule L.
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stock could have a value between $3 million and $5 million. We
place little reliance on that report. In the first instance, the
Harch Capital report was not offered into evidence for the truth
of the matters asserted therein. The Harch Capital report is a
4-paragraph, 1-page document, which contains no analysis or
explanation regarding the valuation figures. Harch Capital
states: “we are aware that Carolco is in bankruptcy and that
claims have been made with respect to the instruments in
question”, but otherwise suggests that it did not factor into its
“valuation”, any of the plans of reorganization that were filed
in the bankruptcy court. In fact, the date of the report is the
same date that the second plan of reorganization and its attached
disclosure statement were filed with the bankruptcy court.
Petitioner also relies on the fact that shares of Carolco
stock were trading in the market on December 11, 1996, and have
continued to trade until the trial date. According to a rebuttal
report that Mr. Wagner submitted, 61,000 shares of Carolco stock
were traded on December 11, 1996. That report reveals, however,
that Carolco stock was trading at $0.002 per share on that date.
In considering this trading, Mr. Wagner opined that the value of
the Carolco securities was “greater than zero.” Mr. Wagner makes
no effort to place any more precise value on the Carolco
securities, and he fails to explain how this market trading
equates with any possible recovery by SMHC on those securities.
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Petitioner points to the negotiations between CDR and the
Ackerman group, in which CDR sought to retain whatever value
might be realized in the Carolco securities. Petitioner contends
that these negotiations indicate that the Carolco securities had
some value. It is unclear from the record, however, precisely
what CDR’s intentions were with respect to the Carolco
securities. Clearly, at the time these negotiations were
ongoing, it was highly unlikely that the banks (through SMHC)
would recover anything on the Carolco securities. Any recovery
at that time would have been highly speculative and contingent on
events that were not foreseeable. Even if we were to assume that
CDR’s interest indicates some value in the Carolco securities, we
have no clear indication of what that value might be.
Finally, any value that might have been realized on the
Carolco securities would not go to the Ackerman group. Indeed,
Mr. Lerner testified that the Ackerman group evaluated the
Carolco securities, but they were concerned only with the
potential negative aspects of those securities; i.e.,
liabilities. He testified that the Ackerman group had very
little control over the Carolco securities since Carolco was “in
bankruptcy proceedings, number one, and, number two, the ultimate
value would accrue to the benefit of Credit Lyonnais, which was
fine with us.” Mr. Lerner testified that because of the various
ways in which CDR laced any realizable value in the Carolco
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securities to Generale Bank’s and CLIS’s preferred interests, it
was unlikely that any value from the Carolco securities would go
to SMP or the Ackerman group.
5. Net Operating Losses
The parties agree that the unused NOLs in SMHC might have
had some potential, but speculative, value to an acquirer of that
company; however, we have no reasonable basis upon which to
determine what that value, if any, might be.160 Any value that
might exist in the NOLs was highly dependent on the acquirer’s
meeting the requirements of section 382, which limits the amount
of taxable income that might be offset by NOLs in the case of an
“ownership change”. Moreover, even if these requirements had
been met and the NOLs had been preserved, SMHC would have had to
have generated sufficient taxable income against which to use the
NOLs. As of December 11, 1996, without additional
capitalization, this prospect was, for the most part,
unrealistic.
160
Petitioner submitted the expert report and testimony of
Todd Crawford of Deloitte & Touche. Mr. Crawford opined that the
NOLs might have had a value in the range of $620,000 to
$1,245,000, after applying a 98- to 99-percent risk-related
discount. Mr. Crawford admitted at trial that his valuation was
subjective and speculative. For the reasons discussed infra, we
conclude that Mr. Crawford’s analysis is unreliable and not
admissible into evidence.
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6. Conclusion
We conclude that SMHC’s assets (the EBD film library, the
Carolco securities, and the unused NOLs) had no significant value
as of the date the banks made their “contributions” of SMHC
receivables and stock to SMP.161 Consequently, without an
infusion of new capital, SMHC had no realistic income-generating
capacity to create value in the SMHC receivables and stock.
Given the absence of appreciable value in the contributed
properties and the banks’ intentions of exiting the partnership,
we are not convinced that the Ackerman group entered into the
transaction with any realistic expectation of realizing any
economic return on the approximately $10 million that they had
paid the banks as an inducement to enter the transaction.
Instead, the Ackerman group incurred this $10 million “cost” not
as part of a real-world economic investment but in the hopes of
reaping enormous tax benefits and fees from the banks’ built-in
losses. Consequently, the economic realities lead us to conclude
that this $10 million amount was paid, not as an inducement for
entering into the partnership but for the $1.7 billion in tax
attributes that the Ackerman group acquired in the transaction.
161
SMHC’s draft consolidated balance sheets for the period
ended Dec. 10, 1996, showed SMHC’s only assets to consist of
property and equipment in the amount of $69,000. Similarly,
SMHC’s tax return for the period ended Dec. 31, 1996, showed that
its assets then totaled $69,113.
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F. Other Considerations
1. SMP’s Other Film-Related Activities
After the CDR transaction, SMP acquired the “City Lights”
library, the “Wisdom” library, the “Moving Picture” library, the
“Five Stones” library, and the “Vista Street” library.
Petitioner suggests these acquisitions should have some bearing
upon our evaluation of the CDR transaction. We disagree. There
is no evidence to suggest that these acquisitions were
contemplated at the time of the CDR transaction; these
acquisitions are entirely unrelated to any supposed film venture
with the banks. In any event, the acquisitions are relatively
insignificant when compared to the enormous tax losses that the
Ackerman group claims to have reaped from the CDR transaction and
the $14,595,652 fee that Imperial paid SMP for its share of tax
losses on the Corona transaction.162
Petitioner also points to a number of discussions that he
had in 1997, 1998, and 1999, which related to certain film-
related transactions and activities.163 According to Mr. Lerner,
162
The film libraries consisted of 85 film titles, for which
the Ackerman group paid a total of $1.1 million.
163
The discussions involved: (1) A possible distribution
deal between SMHC and Orion in 1997; (2) a possible sale by the
Jones Entertainment Group in 1997 of the rights to 5 film titles;
(3) negotiations in 1997 with CitiCorp Ventures, which was
interested in acquiring a film library for use in its chain of
theaters; (4) a possible distribution relationship with UnaPix
Entertainment in 1997; (5) negotiations with Comcast Corp.,
(continued...)
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however, none of these transactions actually resulted in a
transaction between SMP, SMHC, and the other companies. Further,
although petitioner submitted various exhibits indicating his
contacts with the various parties, we have no basis from which to
evaluate the content or the scope of the alleged discussions and
negotiations. At best, the Ackerman group’s various attempts to
engage in film activities through SMP might be relevant in
determining whether SMP was a bona fide partnership for Federal
tax purposes; however, respondent does not dispute that SMP is a
bona fide partnership. These film-related activities are
unrelated to the CDR transaction and do not persuade us that the
banks intended to enter a film distribution business with the
Ackerman group, as petitioner claims.
163
(...continued)
regarding the distribution of SMHC’s films in connection with its
cable business; (6) a possible acquisition of the Crossroads film
library in 1997; (7) negotiations with Atlas Entertainment in
1997 and 1998 regarding the development of a production capacity
inside of SMHC; (8) a business proposal to establish an African-
American film distribution company with C. O’Neill Brown in 1998;
(9) a possible transaction with Reisher Entertainment in 1998;
(10) a possible acquisition of the feature film library of the
Modern Times Group in 1998; (11) negotiations with Frank Klein,
who was president of PEC Israeli Economic Corp. in 1998; (12)
negotiations regarding the sale of Polygram Filmed Entertainment
in 1998; (13) a possible merger of SMHC with, or acquisition by,
Artisan Entertainment in 1998; (14) a possible business venture
with Regent Entertainment, Inc. in 1998; (15) negotiations for
the purchase of film titles from Silver Screen International and
Aries Entertainment, Inc., in 1999; and (16) a possible film deal
involving Broadcast.com. in 1999. Petitioner also points to
discussions with Alan Cole Ford, formerly of MGM, regarding his
acquisition of Paul Kagan Associates.
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2. Relationship Between the Parties
We are not persuaded that Mr. Jouannet’s interests, and
those of CDR, were necessarily adverse to the interests of the
Ackerman group and SMP, at least insofar as the tax
characterization of the transaction was concerned. As previously
discussed, Mr. Jouannet’s job was to realize whatever value he
could in the Credit Lyonnais group’s “bad” investments and loans,
as quickly as possible. Whatever value might be realized from
these “bad” investments and loans depended in large part on
structuring a deal whereby the potential buyer could exploit the
associated tax attributes. At least to this degree, Mr.
Jouannet’s and Mr. Lerner’s interests coincided.
3. Ackerman Group’s Exploitation of Tax Attributes
The Corona transaction and the sales of receivables to
TroMetro clearly denote the long-term objectives of the Ackerman
group in entering into the transaction with CDR. The sales of
the receivables to Mr. Lerner’s friend, colleague, and business
associate, Mr. van Merkensteijn, were an essential component to
realizing the built-in losses in the receivables.164 The sales of
164
In connection with his purchase of the receivables from
SMP in 1997 and 1998, Mr. van Merkensteijn paid a total amount of
approximately $1 million to SMP, either as cash downpayments or
as principal and interest payments on his notes to SMP. In
connection with his purchase of the $79 million receivable, Mr.
van Merkensteijn paid approximately $400,000 ($120,000 as a cash
down payment and $287,791 as principal and interest on his note).
Besides the sales of the receivables, the Ackerman group had
(continued...)
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the receivables resulted in substantial losses that passed
through from SMP to Somerville S Trust to Mr. Ackerman: A
$147,486,000 loss on the sale of the $150 million receivable in
1997; a $80,190,418 loss on the sale of the $81 million
receivable in 1998; and a $4,097,577 loss on the sale of the $79
million receivable in 1997. But these losses were not enough for
the Ackerman group.
In 1997, Mr. Lerner actively marketed a tax deal to
Imperial, which was searching for tax losses to offset
substantial gains that it expected to realize. Mr. Lerner was a
director at Imperial and offered Imperial a stake in SMP’s
purported “film business.” From the beginning, however, Imperial
was interested in one thing only, a piece of the more than $1
billion in built-in losses that SMP possessed. Mr. Lerner
proposed that Imperial would purchase a 25-percent ownership
interest in SMP; upon disposal of SMP’s high-basis assets,
Imperial would be allocated approximately $400 million in losses.
164
(...continued)
other dealings with TroMetro and Mr. van Merkensteijn. For
example, on Dec. 7, 1998, SMP purportedly purchased a 50-percent
interest in Railcar Management Partners, LLC, which Mr. van
Merkensteijn owned, for $1.4 million (approximately the same
amount that Mr. van Merkensteijn paid altogether for his
purchases of the receivables). Given Mr. van Merkensteijn’s
close relationship with Mr. Lerner, evidenced in part by his
sharing office space with Crown Capital, we cannot foreclose the
possibility that SMP funneled back Mr. van Merkensteijn’s
purchase payments or “financed” TroMetro’s purchases of the
receivables in 1997 and 1998.
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As part of this deal, Imperial would enter into a tax-sharing
agreement providing for a payment for the benefits attributable
to this loss.
Although Imperial approved this deal, Mr. Lerner got nervous
and proposed an alternative tax deal in which SMP would form a
new limited liability company, Corona, by contributing the $79
million receivable. Imperial would purchase a substantial
portion of SMP’s membership interest and would receive a smaller,
but still significant, tax-loss allocation on Corona’s sale of
the high-basis $79 million receivable. In exchange for the tax
losses, Imperial would “contribute” back to Corona 20 percent of
the tax losses that it received; i.e., $14,595,652. SMP received
this purported contribution as a fee for the tax losses.165 At
the end of the day, the Ackerman group and Imperial had
effectively duplicated the built-in loss that was inherent in the
$79 million receivable with both the contributor (SMP) and the
transferee partner (Imperial) receiving tax-loss allocations:
SMP realized $62,237,061 and $11,647,367 losses, respectively, on
the sales of portions of its Corona membership interest; Imperial
realized a $74,671,378 loss (and SMP realized a $4,097,577 loss)
on the sale of the $79 million receivable.
165
Mr. Lerner testified that SMP would receive “A very large
payment” for the tax losses, roughly “$15 million.”
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For these reasons, we conclude that the only purpose for the
banks’ participation was to transfer built-in losses to the
Ackerman group taking advantage of the section 704(c) special
allocation rules and to subsequently market those losses to other
“investors” in the Ackerman group’s purported film enterprise.
As a result of the transaction with CDR and the section 704(c)
rules, the Ackerman group acquired $974,296,601 in claimed basis
in the receivables from Generale Bank, $79,912,955 in claimed
basis in the $79 million receivable, and $665 million in the SMHC
stock.
4. Congressional Intent
Petitioner contends that, notwithstanding these
considerations, we should respect the form of the transactions
between the Ackerman group, CDR, Generale Bank, and CLIS.
Petitioner argues that the transfer of tax basis from Generale
Bank and CLIS to Somerville S Trust is contemplated and, in fact,
prescribed under section 704(c). Petitioner concludes that
section 723 and the partnership basis rules control the outcome
of these cases.
Petitioner suggests that formalistic compliance with
statutory provisions necessarily entitles the taxpayer to the tax
benefits provided therein. We disagree.166 Under Gregory v.
166
In response to such a contention, the Court of Appeals
for the Second Circuit has stated:
(continued...)
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Helvering, 293 U.S. at 469, “the substance of transactions is to
be determined uniformly in relation to the meaning and
intendment” of the Federal tax laws. Weller v. Commissioner, 270
F.2d 294, 298 (3d Cir. 1959), affg. 31 T.C. 33 and Emmons v.
Commissioner, 31 T.C. 26 (1958); see also Jacobson v.
Commissioner, 96 T.C. 577, 590 (1991), affd. 963 F.2d 218 (8th
Cir. 1992).
In enacting subchapter K, Congress adopted an aggregate rule
for contributed property. In other words, Congress required
partners to divide the gain or loss, depreciation, or depletion
with respect to contributed property among the partners in a
manner which attributes precontribution appreciation or
depreciation in value to the contributor. H. Conf. Rept. 2543,
83d Cong., 2d Sess., at 58 (1954). In enacting this aggregate
rule, however, Congress did not envision contributions to a
partnership made solely for the purpose of subsequently
166
(...continued)
Having satisfied the formal requirements of what
it sees as the applicable rules, SuCrest urges us to
understand its elaborate machinations as a legitimate
ploy to hold down taxes and directs us to the maxim
that a person is entitled to arrange his taxes so as to
pay only that which is due. But, of course, the
taxpayer is not permitted to avoid taxes which are due
and the invocation of the phrase tells us nothing about
what must ultimately be rendered unto the I.R.S. any
more than Socrates solved the thorny problems of
justice by defining it to require that we give every
person his due. [United States v. Ingredient Tech.
Corp., 698 F.2d 88, 94 (2d Cir. 1983).]
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transferring inside basis to another partner. Indeed, the
purpose of section 704(c) is to prevent the shifting of tax
consequences among partners with respect to precontribution gain
or loss, sec. 1.704-3(a)(1), Income Tax Regs., and not to
perpetrate a massive shift in basis from transitory “partners” to
other partners as part of a transaction lacking economic
substance.
The purpose for the CDR transaction was purely and simply to
transfer built-in losses from CDR to the Ackerman group. CDR
wanted to realize some amount on the banks’ built-in losses. The
Ackerman group wanted to acquire the built-in losses to exploit
the tax attributes. To these ends, the parties entered into a
prearranged series of transactions wherein the banks contributed
high-basis assets to SMP in exchange for preferred interests in
that company and then immediately sold their preferred interests
to the Ackerman group.
Notwithstanding its form, the transaction did not, in
substance, represent contributions of property in exchange for
partnership interests, ingredients obviously contemplated in
sections 704(c) and 723. The contribution provisions of
subchapter K do not contemplate giving effect to a transitory
partnership “contribution” that has no economic significance
apart from trafficking in tax attributes. Cf. United States v.
Stafford, 727 F.2d 1043, 1048 (11th Cir. 1984) (stating that the
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purpose of the contribution rules is “to facilitate the flow of
property from individuals to partnerships that will use the
property productively.”).
In Wilkinson v. Commissioner, 49 T.C. 4 (1967), the
taxpayers were obligees on installment notes made by their own
corporation. They wished to liquidate the corporation. Doing
so, however, would have caused a deemed disposition of the notes
(because the obligor and obligee on the notes would then be
merged) and would have triggered tax on the deferred gains in the
notes. In an attempt to avoid this result, the taxpayers hit
upon a scheme: they would first assign the notes to a
partnership in which they were members; then, after their
corporation was liquidated, the partnership could assign the
notes back to them. Under section 721, they would recognize no
gain on the transfer to the partnership; under section 731, there
would be no tax on the partership’s reassigning the notes to
them. In fact, there would never be any tax to anyone: “the
installment obligations would simply vanish for tax purposes.”
Wilkinson v. Commissioner, supra at 12. This Court observed:
“We cannot believe that a hurriedly organized tour through
sections 721 and 731 could yield such an absurd result.” Id. We
reasoned that “the transparent device of making a formal
assignment * * * to the partnership” was not controlling. Id. at
10. Instead, after examining the “realities” of the transaction,
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we concluded that the taxpayer’s assignment of the notes to the
partnership was “not intended to have any economic significance”
and should be disregarded Id. at 11.
Similarly, in the instant case, the transaction between the
banks and the Ackerman group carried the seeds of its own
undoing: it depended upon the banks’ withdrawing from the very
partnership they purported to join. The banks’ “contributions”
to the partnership were not intended to have any economic
significance apart from transferring built-in tax losses. The
transaction, if respected, would produce tax results not
contemplated by subchapter K: staggering capital losses would be
allocated to partners in the absence of any economic losses, to
be used to shelter unrelated income not only for themselves but
also for other taxpayers to whom, for a fee, the Ackerman group
might market the losses. To paraphrase Wilkinson: We cannot
believe that a romp down the yellow brick road of subchapter K
can yield these absurd results.
G. Conclusion
We conclude that the transaction whereby the banks purported
to partner with the Ackerman group lacked economic substance.
The Ackerman group and the banks did not intend to partner in a
film distribution business. Rather, the transaction was designed
to transfer built-in tax losses to the Ackerman group for $10
million. The economic realities of the transaction align with
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this intent. Consequently, we disregard Generale Bank’s and
CLIS’s purported contributions to SMP. Cf. Rice’s Toyota World,
Inc. v. Commissioner, 752 F.2d at 95 (holding that the Tax Court
correctly ignored labels applied by the taxpayers and determined
that a transaction was in substance a fee paid for tax benefits).
IV. Step Transaction Doctrine
Respondent contends that the step transaction doctrine
applies to disallow petitioner’s claimed losses. Whether this
contention is viewed as an alternative argument, or merely as a
particularization of respondent’s substance over form argument,
the results are identical: We disregard the banks’ purported
contributions to SMP. Nevertheless, for the sake of
completeness, and because the parties have briefed legal
precedents involving the step transaction doctrine, we address
the parties’ arguments in this regard.
A. Legal Principles
The step transaction doctrine embodies substance over form
principles; it treats a series of formally separate steps as a
single transaction if the steps are in substance integrated,
interdependent, and focused toward a particular result. Penrod
v. Commissioner, 88 T.C. 1415, 1428 (1987). “Where an
interrelated series of steps are taken pursuant to a plan to
achieve an intended result, the tax consequences are to be
determined not by viewing each step in isolation, but by
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considering all of them as an integrated whole.” Packard v.
Commissioner, 85 T.C. 397, 420 (1985).
There is no universally accepted test as to when and how the
step transaction doctrine should be applied to a given set of
facts; however, courts have applied three alternative tests in
deciding whether to invoke the step transaction doctrine in a
particular situation: the “binding commitment,” the
“interdependence,” and the “end result” tests. Cal-Maine Foods,
Inc. v. Commissioner, 93 T.C. 181, 198-199 (1989); Penrod v.
Commissioner, supra at 1429-1430. Respondent relies in the
instant cases on the “end result” and “interdependence” tests.
Under the “end result” test, the step transaction doctrine
will be invoked if it appears that a series of separate
transactions is made up of prearranged parts of a single
transaction, cast from the outset to achieve the ultimate result.
Greene v. United States, 13 F.3d 577, 583 (2d Cir. 1994);
Associated Wholesale Grocers, Inc. v. United States, 927 F.2d
1517, 1523 (10th Cir. 1991). The end result test is particularly
pertinent to cases involving a series of transactions designed
and executed as parts of a unitary plan to achieve an intended
result. Kanawha Gas & Utils. Co. v. Commissioner, 214 F.2d 685,
691 (5th Cir. 1954), revg. 19 T.C. 1017 (1953). The series of
closely related steps in such a plan is merely the means by which
to carry out the plan, and the steps will not be separated. Id.
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In the Second Circuit, the prearranged plan need not be legally
binding but must at least constitute an informal agreement or
understanding between the parties. Greene v. United States,
supra at 583; Blake v. Commissioner, 697 F.2d 473, 478-479 (2d
Cir. 1982), affg. T.C. Memo. 1981-579.
Under the “interdependence” test, the step transaction
doctrine will be invoked where the steps in a series of
transactions are so interdependent that the legal relations
created by one transaction would have been fruitless without a
completion of the series. Am. Bantam Car Co. v. Commissioner, 11
T.C. 397, 405 (1948), affd. 177 F.2d 513 (3d Cir. 1949). We must
determine whether the individual steps had independent
significance or whether they had significance only as part of a
larger transaction. Greene v. United States, supra at 584;
Penrod v. Commissioner, supra at 1430. In making this
determination, we rely on a reasonable interpretation of
objective facts. King Enters., Inc. v. United States, 189 Ct.
Cl. 466, 418 F.2d 511, 516 (1969); Cal-Maine Foods, Inc. v.
Commissioner, 93 T.C. 181, 199 (1989).
B. Parties’ Arguments
Invoking the “end result” test, respondent argues that
Generale Bank’s and CLIS’s contributions of the high-basis, low-
value receivables and SMHC stock to SMP, and Somerville S Trust’s
purchase of Generale Bank’s and CLIS’s preferred interests were
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really component parts of a single transaction intended from the
outset to transfer to the Ackerman group the built-in tax losses
in the SMHC receivables and stock. Invoking the
“interdependence” test, respondent argues that Generale Bank’s
and CLIS’s contributions of the SMHC receivables and stock and
Somerville S Trust’s purchase of Generale Bank’s and CLIS’s
preferred interests were so interdependent that either
transaction alone would have been fruitless without the other.
Respondent argues that these transactions should be recast as a
direct sale of the high-basis, low-value receivables to
Somerville S Trust.
Petitioner argues that the “end result” test is
inapplicable. Petitioner argues that Generale Bank’s and CLIS’s
contributions of SMHC receivables and stock and Somerville S
Trust’s purchase of Generale Bank’s and CLIS’s preferred
interests were not merely a series of steps in a single
transaction designed to transfer tax attributes but were instead
designed for SMP to acquire a film library. Petitioner also
argues that the “interdependence” test is inapplicable.
Petitioner argues that Generale Bank’s and CLIS’s contributions
of SMHC receivables and stock and Somerville S Trust’s purchase
of Generale Bank’s and CLIS’s preferred interests were not so
interdependent that either transaction alone would have been
fruitless without the other. Petitioner contends that there was
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no formal or informal agreement or understanding to carry out a
prearranged sale transaction via SMP.
C. Court’s Analysis
Whether we apply the “end result” test or the
“interdependence” test, we conclude that the step transaction
doctrine applies to Generale Bank’s and CLIS’s contributions of
the SMHC receivables and stock and Somerville S Trust’s purchase
of Generale Bank’s and CLIS’s preferred interests in SMP. For
the reasons discussed in more detail above, we find that Generale
Bank’s and CLIS’s contributions were made solely for the purpose
of transferring built-in tax losses to the Ackerman group. The
Ackerman group could not obtain the built-in tax losses through a
direct purchase of the SMHC receivables and stock, but could only
obtain those losses by interposing a partnership and manipulating
the partnership basis rules. From the beginning, both parties
planned and understood that CLIS would receive a $5 million
advisory fee and that the banks would exercise their put rights
at the earliest possible point (December 31, 1996), exiting the
partnership. The contributions, the payment of the advisory fee,
and the exercise of the put rights were mutually interdependent
steps taken to dispose of Generale Bank’s and CLIS’s “bad”
investments in the SMHC receivables and stock and to transfer the
built-in tax losses to the Ackerman group.
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Petitioner argues, however, that respondent’s attempted
application of the step transaction doctrine is prohibited under
certain judicial precedents. Petitioner contends that the step
transaction doctrine cannot be applied to invent steps that did
not occur or replace a taxpayer’s chosen route with the
Commissioner’s preferred route when no steps are eliminated.
Petitioner relies on Greene v. United States, 13 F.3d 577 (2d
Cir. 1994); Redding v. Commissioner, 630 F.2d 1169 (7th Cir.
1980), revg. and remanding 71 T.C. 597 (1979); Grove v.
Commissioner, 490 F.2d 241 (2d Cir. 1973), affg. T.C. Memo. 1972-
98; Turner Broad. Sys., Inc. & Subs. v. Commissioner, 111 T.C.
315 (1998); Esmark, Inc. & Affiliated Cos. v. Commissioner, 90
T.C. 171 (1988), affd. without published opinion 886 F.2d 1318
(7th Cir. 1989). We conclude that these precedents are legally
and factually distinguishable from the instant cases.
Greene v. Commissioner, supra, and Grove v. Commissioner,
supra, like Blake v. Commissioner, supra at 478-479, addressed
the application of the step transaction doctrine in situations
where the taxpayer “contributed” a substantially appreciated
asset to a charitable or tax-exempt entity to sell. In Blake,
the critical inquiry in the court’s step transaction analysis was
whether the transactions were undertaken pursuant to an advance
understanding. In Blake, because the Court of Appeals for the
Second Circuit determined that the Tax Court’s finding of a
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prearranged understanding was not clearly erroneous, it upheld
the Commissioner’s proposed application of the step transaction
doctrine. The court distinguished Grove, in which the court
declined to apply the step transaction doctrine, as a case where
there was not even an informal agreement among the parties as to
future disposition of the contributed asset. Id. at 479. Like
the transaction in Blake, and unlike the transactions in Greene
and Grove, Generale Bank’s and CLIS’s contributions of the high-
basis, low-value receivables and SMHC stock to SMP, and
Somerville S Trust’s purchase of Generale Bank’s and CLIS’s
preferred interests in SMP, occurred as part of a prearranged
understanding between the Ackerman group, CDR, and the banks.
In Redding v. Commissioner, supra, the Court of Appeals for
the Seventh Circuit held that the step transaction doctrine did
not justify treating the distribution of stock warrants, and the
exercise of those warrants, as steps in a single transaction
involving the distribution solely of stock for purposes of
section 355(a)(1). In Redding, the corporation had no
prearranged understanding with its shareholders that they would
exercise the stock warrants; during the subscription period the
shareholders had the option of exercising the stock warrants or
not. Unlike the parties to the transaction in Redding, the
Ackerman group, CDR, and the banks had decided on a predestined
course--the banks would exercise their put rights, effectively
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transferring their built-in tax losses to the Ackerman group for
cash. Although the banks were not legally obligated to exercise
their put rights, there was an understanding that they would do
so. The banks had every intention of exercising those rights and
no economic incentive to stay in SMP.
We also find the instant cases distinguishable from Esmark
Inc. & Affiliated Cos. v. Commissioner, supra, and Turner Broad.
Sys., Inc. & Subs. v. Commissioner, supra. In Esmark Inc., we
determined that a tender offer and redemption were part of an
overall plan and a prearranged understanding between Mobil and
the taxpayer. Nonetheless, the taxpayer, which was a publicly
held company, could in no way bind its shareholders to an
agreement to sell their shares, and each shareholder
independently decided to sell or retain the taxpayer’s stock.
The shareholders were not a part of the understanding between
Mobil and the taxpayer. Thus, the existence of the shareholders
gave the individual steps in the multi-step transaction
independent significance; Mobil’s acquisition of the taxpayer’s
shares was not a foregone conclusion. By contrast, in the
instant cases, there were no independent parties that might upset
the planned transactions. Pursuant to the side letter agreement,
Rockport Capital was bound to purchase the banks’ preferred
interests on the exercise of their put rights. Pursuant to the
deposit account agreement, the $5 million put price for the
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preferred interests was guaranteed. Although the banks were not
legally obligated to exercise their put rights, there was an
understanding that they would do so. The banks had every
intention and economic incentive to do so.
Unlike the transactions in Turner Broadcasting Sys., Inc.
and Esmark Inc., the transaction with CDR was engaged in solely
to accomplish a reduction in taxes and did not involve the type
of legitimate tax choices that courts have traditionally upheld.
Unlike Turner Broadcasting Sys., Inc. and Esmark Inc., the
instant cases do not involve attempts by the Commissioner to add
steps that did not occur. Unlike the transactions in Turner
Broadcasting Sys., Inc. and Esmark Inc., the form of the CDR
transaction in the instant cases does not align with its
substance. Under the circumstances, we find respondent’s
proposed direct-sale recharacterization to be consistent with our
conclusion that the true substance of the transaction between the
Ackerman group and CDR was a transfer of built-in tax losses for
cash.
Petitioner claims, however, that there were legitimate
business reasons for structuring the transaction as a
contribution to a partnership for preferred interests.
Petitioner claims: “Viewed from the broader perspective, a
partnership structure was the only arrangement by which the stock
of Santa Monica Holdings Corporation, the obligor on two large
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debts, and the debts themselves could be consolidated in the same
hands.” We might agree that such goals could provide legitimate
reasons for using the partnership form. But where, as here, the
banks intended to immediately exit the partnership, petitioner’s
argument loses its force. The interposition of the partnership
contribution was unnecessary to accomplish the Ackerman group’s
acquisition of the SMHC receivables and stock. Indeed, the
Ackerman group easily could have accomplished this acquisition in
one step, in a direct purchase of the SMHC receivables and stock,
with the same effect (apart from tax consequences). In these
circumstances, we cannot agree that Turner Broadcasting or Esmark
precludes the application of the step transaction doctrine. Cf.
W. Coast Mktg. Corp. v. Commissioner, 46 T.C. 32 (1966); Rev.
Rul. 70-140, 1970-1 C.B. 73.
D. Conclusion
We conclude that the step transaction doctrine applies to
Generale Bank’s and CLIS’s contributions of SMHC receivables and
stock to SMP and Somerville S Trust’s purchase of Generale Bank’s
and CLIS’s preferred interests in SMP. We conclude that those
transactions should be recast as direct sales of the SMHC
receivables and stock from Generale Bank and CLIS to Somerville S
Trust followed by Somerville S Trust’s contribution of the
receivables and stock to SMP for its preferred interests.
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V. Basis Arguments
Respondent makes alternative arguments relating to the SMHC
receivables; i.e., the $974 million in receivables from Generale
Bank and the $79 million receivable from CLIS. In essence,
respondent argues that even if we were to respect the form of the
transaction, the banks’ purported contributions of the SMHC
receivables to SMP should not create basis in SMP, because the
receivables were worthless when the banks made the purported
contributions. Although this argument, if successful, would
prove fatal to all the built-in losses associated with all the
SMHC receivables, respondent singles out the $79 million
receivable for additional punishment: Respondent argues that SMP
obtained no basis in the $79 million receivable, because it was
not bona fide debt of SMHC and could not be contributed to SMP.
For the sake of completeness, we address each of these
alternative arguments below.
A. Worthlessness Issue
For the reasons described below, we hold that the SMHC
receivables were worthless when Generale Bank and CLIS
purportedly contributed them to SMP. Consequently, the
receivables did not constitute a “contribution of property”
within the meaning of section 721 and the partnership basis
rules; SMP obtained no basis in the SMHC receivables pursuant to
section 723.
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1. Contribution of Worthless Assets
Respondent’s threshold legal premise is that a contribution
of worthless debts does not constitute a “contribution of
property” for purposes of section 721 and the partnership basis
rules. Respondent contends that when worthless assets are
contributed to a partnership “there is no contribution in the
true sense of the word as nothing of value is transferred to it.”
In making this contention, respondent relies on our holding in
Seaboard Commercial Corp. v. Commissioner, 28 T.C. 1034 (1957).
In Seaboard Commercial Corp., we held that a transfer of
worthless stock to a corporation was not a “contribution to
capital” within the meaning of the corporate carryover basis
rules.167 We stated that it would be “a perversion of the
statutory language” to consider a contribution of a worthless
asset as coming within the phrase “contribution to capital”. Id.
at 1054. We further stated: “A contribution of zero would not
really be a contribution”. Id.
Petitioner contends that the SMHC receivables constitute
“property” within the meaning of section 721 and the partnership
basis rules, irrespective of whether the receivables were
worthless. Petitioner cites Crane v. Commissioner, 331 U.S. 1
167
Sec. 113(a)(8)(B) of the 1939 Code provided that if
property were acquired by a corporation as paid-in surplus or as
a contribution to capital, then the corporation’s basis would be
the same as it was in the transferor’s hands.
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(1947), for the proposition that the term “property” is to be
construed broadly. Petitioner contends that the term “property”
encompasses “whatever may be transferred.” In making his
contentions, petitioner relies on United States v. Stafford, 727
F.2d 1043 (11th Cir. 1984).
In United States v. Stafford, supra at 1052, the Court of
Appeals for the Eleventh Circuit held that the term “contribution
of property” in section 721 did not contemplate as a prerequisite
the legal enforceability of the rights asserted as “property”.
The Court of Appeals then concluded that a letter of intent that
was contributed to a partnership was a “contribution of property”
within the meaning of section 721. Id. at 1052. In doing so,
however, the Court of Appeals assumed arguendo that the
factfinder on remand would determine that the letter of intent
had value. Id. The Court of Appeals explained that “If the item
asserted as property is valueless,” then section 721 will not
apply. Id. at 1052 n.14.
We hold that a contribution of a worthless debt is not a
“contribution of property” for purposes of section 721 or the
partnership basis rules. See Hayutin v. Commissioner, T.C. Memo.
1972-127 (suggesting that a contribution of a worthless note to a
partnership would not be a true contribution since nothing of
value was transferred to the partnership), affd. 508 F.2d 462
(10th Cir. 1974); McKee et al., Federal Taxation of Partnerships
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and Partners, par. 4.02[1], at 4-15 (3d ed. 1997) (“Regardless of
how broadly the term ‘property’ is defined under § 721, it is
obvious that § 721 does not apply unless the person receiving the
partnership interest surrenders something of value to the
partnership.”).
2. Worthlessness of Debts
Respondent argues that the $974 million in receivables from
Generale Bank and the $79 million receivable from CLIS were
worthless at the time of Generale Bank’s and CLIS’s contributions
to SMP because the SMHC assets underlying them had no value. We
agree.
The parties agree that in determining whether the
receivables (debts from SMHC’s perspective) were worthless when
they were contributed to SMP, the principles of section 166(a)(1)
apply by analogy.168 Under those principles, a debt becomes
worthless when identifiable events clearly mark the futility of
any hope of further recovery. See James A. Messer Co. v.
Commissioner, 57 T.C. 848, 861 (1972). A worthless debt lacks
both potential value and current liquid value. Id. Whether a
debt has become worthless is a question of fact to be determined
on the basis of objective factors, not on the taxpayer’s
subjective judgment as to the worthlessness of the debt.
168
Sec. 166(a)(1) allows a deduction for any debt which
becomes worthless within the taxable year.
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LaStaiti v. Commissioner, T.C. Memo. 1980-547. We examine only
facts and circumstances that were known or reasonably could have
been known at the time of the asserted worthlessness. See
Halliburton Co. v. Commissioner, 93 T.C. 758, 774 (1989), affd.
946 F.2d 395 (5th Cir. 1991).
For a debt to be entirely worthless, it must have lost its
“‘last vestige of value.’” Bodzy v. Commissioner, 321 F.2d 331,
335 (5th Cir. 1963) (quoting Miami Beach Bay Shore Co. v.
Commissioner, 136 F.2d 408, 409 (5th Cir. 1943), revg. and
remanding an unpublished decision of this Court), revg. on
another issue T.C. Memo. 1962-40; Am. Offshore, Inc. v.
Commissioner, 97 T.C. 579, 593 (1991); see also Higginbotham-
Bailey-Logan Co. v. Commissioner, 8 B.T.A. 566, 578-579 (1927).
A debt is not wholly worthless if the collateral securing it has
value. Jessup v. Commissioner, T.C. Memo. 1977-289.
As discussed in detail supra, we have found that the EBD
film rights, the Carolco securities, and the NOLs in SMHC had no
material or consequential value as of December 11, 1996, when
Generale Bank and CLIS “contributed” the SMHC receivables to SMP.
Petitioner argues, however, that these assets had some value,
even if speculative, and therefore the receivables were not
entirely worthless.
Although the term “worthless” in section 166 has been
interpreted strictly to include only debts that are “wholly
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worthless”, see sec. 1.166-5(a)(2), Income Tax Regs., the courts
have not interpreted section 166 so strictly as to include the
recovery of nominal amounts. For example, in Buchanan v. United
States, 87 F.3d 197, 200 (7th Cir. 1996), the Court of Appeals
for the Seventh Circuit observed that “the recovery of a tiny
amount of a debt, even if fully anticipated rather than
completely unpredictable, will not defeat a finding of
worthlessness”. Instead, a debt is worthless if on a particular
date the taxpayer has “no reasonable prospect” of recovering “a
significant, though in the sense merely of nontrivial, fraction”
of the debt amount.169 Id. The Court of Appeals reasoned that
“Recovery of a trivial fraction of the debt would be unlikely to
cover the costs of collection”. Id.
Petitioner, however, points to Los Angeles Shipbuilding &
Drydock Corp. v. United States, 289 F.2d 222 (9th Cir. 1961). In
that case, the Court of Appeals for the Ninth Circuit held that
“Nominal value of the property owned by * * * [the debtor]
compared to the size of its debt * * * does not determine
worthlessness, but rather worthlessness is determined by
comparing the value of the property to a zero figure.” Id. at
228. Reading Buchanan and Los Angeles Shipbuilding & Drydock
together, petitioner argues: “To be considered worthless,
169
See Rev. Rul. 71-577, 1971-2 C.B. 129 (recovering one or
two cents on the dollar represents a trivial amount).
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property must be worthless in a relative and an absolute sense.”
See Buchanan v. United States, supra at 201.
Whether we compare the value of the EBD film rights, the
Carolco securities, and the NOLs in SMHC to the size of the
receivables or to a zero figure, we reach the same conclusion.
We conclude that the receivables were worthless both in a
relative and an absolute sense.170 We hold that Generale Bank’s
and CLIS’s purported contributions of the SMHC receivables to SMP
were not a “contribution of property” within the meaning of
section 721 and the partnership basis rules, and that SMP
obtained no basis in those receivables pursuant to section 723.171
170
Petitioner also contends that there was “potential value”
in SMHC. Petitioner claims that “Messrs. Ackerman and Lerner
(through Rockport) had expressed an interest in SMHC stock and
had presented a proposal to the Banks which would entail the
continuation and rejuvenation of that company, rather than its
destruction.” For the reasons stated supra, we find that the
Ackerman group, CDR, and the banks did not intend to engage in
any film business. Moreover, SMHC was virtually devoid of
assets, and any recovery in that company would have required an
infusion of new capital.
171
Respondent argues, alternatively, that under sec.
1016(b), Generale Bank’s and CLIS’s bases in the SMHC receivables
should have been adjusted to account for worthlessness deductions
that Generale Bank and CLIS could have taken, but did not. Sec.
1016(b) provides that, in the case of substituted basis property,
proper adjustments to basis shall be made in respect of the
period during which the property was held by the transferor,
donor, or grantor. We cannot agree that sec. 1016(b) requires an
adjustment for bad debt deductions that could have been taken,
but were not. None of the specified adjustments in sec. 1016(a)
refers to sec. 166 bad debt deductions. In any event, because we
decide that the receivables were worthless when they were
contributed to SMP, a contribution of those worthless receivables
(continued...)
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B. Bona Fide Indebtedness Issue
Respondent makes an alternative argument that the $79
million receivable did not arise as part of a bona fide debtor-
creditor relationship. Respondent cites MGM Group Holdings’
assumption of New MGM’s $79 million in indebtedness as a
condition to the sale of New MGM to Kirk Kerkorian. Respondent
contends that since the $79 million receivable did not represent
a bona fide debt, it could not have been contributed to SMP on
December 11, 1996, and SMP could not have obtained basis in the
receivable. Petitioner contends that the $79 million receivable
was bona fide debt of SMHC and arose from a “real loan”
obligation in connection with the 1993 restructuring.
Generally, to be recognized for Federal tax purposes,
indebtedness must be bona fide and must arise from a valid
debtor-creditor relationship. See Knetsch v. United States, 364
U.S. at 365-367; Maxwell v. Commissioner, 3 F.3d 591, 595-597 (2d
Cir. 1993), affg. 98 T.C. 594 (1992). The determinative question
is: “Was there a genuine intention to create a debt, with a
reasonable expectation of repayment, and did that intention
comport with the economic reality of creating a debtor-creditor
relationship?” Litton Bus. Sys., Inc. v. Commissioner, 61 T.C.
367, 377 (1973). In determining whether indebtedness is bona
171
(...continued)
would not give rise to any substituted basis under the
partnership basis rules (e.g., sec. 723).
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fide, we must look to the substance of the transaction, not the
formalities attending it. Muserlian v. Commissioner, 932 F.2d
109, 113 (2d Cir. 1991), affg. T.C. Memo. 1989-493.
In determining whether a debt is bona fide, all the facts
and circumstances are considered, including: (1) Whether a note
or other evidence of indebtedness exists; (2) whether interest is
charged; (3) whether there is a fixed schedule for repayments;
(4) whether any security or collateral is requested; (5) whether
there is any written loan agreement; (6) whether a demand for
repayment has been made; (7) whether the parties’ records, if
any, reflect the transaction as a loan; (8) whether any
repayments have been made; and (9) whether the borrower was
solvent at the time of the loan. See, e.g., Goldstein v.
Commissioner, T.C. Memo. 1980-273 (and cases cited therein).
During the course of its relationship with MGM, the Credit
Lyonnais group had lent or advanced upwards of $2 billion to the
MGM companies. Before October 10, 1996, there was a realistic
possibility that the Credit Lyonnais group might recover a
substantial portion, or perhaps the entire amount, of their loans
and advances to the MGM companies.172 This possibility hinged on
172
Alan Cole Ford, a member of MGM’s management team,
testified that the Credit Lyonnais group had the hope and
expectation of realizing $2 billion on the sale of the MGM
operating company. In considering the disposition of MGM, the
Credit Lyonnais group had prepared a document entitled “Project
Lion, Presentation to Consortium de Realisation”, which recorded
(continued...)
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the valuable MGM film library. Any chance of recouping the loans
and advances evaporated, however, when the highest bid in the New
MGM sale was $1.3 billion. New MGM was still insolvent; it still
owed approximately $79 million to Credit Lyonnais. Generale Bank
would recover nothing on the approximately $1 billion in debt
obligations that MGM Group Holdings owed Generale Bank. Stripped
of the potential value in its stock in the MGM operating company,
MGM Group Holdings was left hopelessly insolvent. Without its
MGM stock and the valuable MGM film library, MGM Group Holdings
was essentially an empty shell, devoid of any assets of value.173
The only assets in MGM Group Holdings at this time were the
Carolco securities and the NOLs. Carolco had been in bankruptcy
for nearly a year; a first plan of reorganization filed on
September 13, 1996, reflected that holders of the Carolco
preferred stock and subordinated notes would receive nothing on
Carolco’s imminent liquidation. MGM Group Holdings had NOLs
172
(...continued)
a range of values of approximately $1.6 to $2.0 billion for MGM.
173
SMHC’s draft financial statements for the period ended
Dec. 10, 1996, paint a very bleak picture of SMHC’s history and
future. The financial statements report that SMHC (i) had
experienced recurring operating losses, (ii) had an accumulated
deficit, and (iii) generated insufficient cashflow to fund its
debt servicing requirements. The financial statements also show
that SMHC had debt held by affiliates of Credit Lyonnais which
was due and payable July 15, 1997, and which was not expected to
be extended and that SMHC’s sole shareholder, CLIS, had not
committed to providing further funding of SMHC’s debt
obligations.
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possibly in excess of $200 million; however, any use of the NOLs
would be severely limited by MGM Group Holdings’ absence of
income and the interest owed on its debts, as well as the NOL
limitations under section 382. These assets provided no
meaningful basis for repaying the $79 million receivable, even
under the best of estimates. Despite these infirmities, Credit
Lyonnais released New MGM from its $79 million debt obligation
and caused MGM Group Holdings to assume this amount.
MGM Group Holdings had a long track record of failing to
repay the loans and advances that the Credit Lyonnais group had
made to it. Following the 1993 restructuring, MGM Group Holdings
retained approximately $962 million in debt that the MGM
companies owed to the Credit Lyonnais group. After additional
advances in 1994 and 1995, MGM Group Holdings owed approximately
$975 million in indebtedness to CLBN, including some capitalized
interest. This amount remained owing as of October 10, 1996.
MGM Group Holdings paid no principal amount of this indebtedness;
there is no evidence that it was ever called upon to make any
repayment.
For many years, MGM Group Holdings paid no interest on its
debt obligations to the Credit Lyonnais group. In connection
with the 1993 financial restructuring of MGM, MGM Group Holdings
and CLBN agreed that $800 million of MGM Group Holdings’ debt
obligations would be noninterest bearing. MGM Group Holdings
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paid no interest on the interest-bearing portion of the debt
obligations.174
With this backdrop in mind, we conclude that Credit Lyonnais
did not expect the $79 million principal amount of the receivable
to be repaid when it released New MGM from, and caused MGM Group
Holdings to assume, that debt obligation. Cf. Epic Associates
84-III v. Commissioner, T.C. Memo. 2001-64 (“Indebtedness is not
considered genuine, that is, a true loan, if the facts show that
the parties to the loan did not intend the principal amount of
the indebtedness to be repaid in full.”).
Certain other factors point to the absence of a genuine
debtor-creditor relationship between Credit Lyonnais and MGM
Group Holdings. First, MGM Group Holdings (or SMHC) never
executed a note for its assumption of the $79 million debt.
There is no indication that the Credit Lyonnais group and MGM
Group Holdings established any fixed repayment schedule for the
$79 million debt. There is no indication that the Credit
174
In the Forms 5472, “Information Return of a 25% Foreign-
Owned U.S. Corporation or a Foreign Corporation Engaged in a U.S.
Trade or Business”, included in its consolidated income tax
returns for the periods ended Dec. 31, 1991, Dec. 31, 1992, Dec.
31, 1993, Dec. 31, 1994, Dec. 31, 1995, and Oct. 8, 1996, MGM
Holdings (and its subsidiaries) reported that no interest was
paid on amounts owed by MGM Holdings and its subsidiaries to
Credit Lyonnais and CLBN. In the Form 5472 for its consolidated
income tax return for the period ended Dec. 31, 1996, MGM Group
Holdings (and its subsidiaries) reported that no interest was
paid on the $1,051,031,234 reported as owed by MGM Group Holdings
and its subsidiaries to Credit Lyonnais and Generale Bank.
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Lyonnais group ever intended to enforce the collection of the $79
million debt or interest on that debt.175 Cf. Estate of Flandreau
v. Commissioner, 994 F.2d 91, 93 (2d Cir. 1993) (stating that
there must be a real expectation of repayment and an intent to
enforce collection at the time of the debt transaction), affg.
T.C. Memo. 1992-173.
Credit Lyonnais, CLIS, MGM Group Holdings, and New MGM were
wholly owned entities in the Credit Lyonnais group. Cf. Estate
of Van Anda v. Commissioner, 12 T.C. 1158, 1162 (1949) (stating
that debt transactions involving related parties are subject to
“rigid scrutiny”), affd. 192 F.2d 391 (2d Cir. 1951); see also
Hardman v. United States, 827 F.2d 1409, 1412 (9th Cir. 1987);
Hoyt v. Commissioner, 145 F.2d 634, 636 (2d Cir. 1944), affg. an
unpublished decision of this Court. It is clear that MGM Group
Holdings assumed New MGM’s debt at Credit Lyonnais’s direction as
a convenient way of moving the $79 million debt out of New MGM to
effectuate its sale to Mr. Kerkorian. Although MGM Group
Holdings assumed New MGM’s obligations on the $79 million debt,
this assumption merely created the illusion of a real debt in MGM
Group Holdings. Unlike New MGM, MGM Group Holdings did not have
the assets to back up the $79 million receivable; it already owed
approximately $974 million in receivables to Generale Bank. It
175
There is no indication that Credit Lyonnais or CLIS
charged any interest, or that MGM Group Holdings (or SMHC) paid
any interest, on the $79 million receivable.
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had no reasonable prospect of generating any revenue to pay back
any meaningful part of the $79 million receivable or, for that
matter, the $974 million in receivables that Generale Bank held.
For these reasons, we conclude that the $79 million receivable
does not represent a bona fide indebtedness and did not arise
from a genuine debtor-creditor relationship.
Petitioner contends, however, that the $79 million
receivable originated in December 1993 when New MGM was created.
Petitioner contends that under the original loan documents
executed in 1993, MGM Group Holdings guaranteed the line of
credit that gave rise to the $79 million receivable. Petitioner
contends that the debt was bona fide when made and the guaranty
was enforceable against SMHC after the $79 million balance was
not paid by the proceeds of New MGM’s sale. Petitioner contends
that MGM Group Holdings’ assumption of the unpaid $79 million
obligation simply reaffirmed its preexisting obligation under the
1993 guaranty.
Petitioner is correct that the $79 million in debt
obligations emanated from the 1993 working capital agreement
between Credit Lyonnais and New MGM. Pursuant to that agreement,
Credit Lyonnais agreed to make certain credit facilities
available to New MGM to fund its cashflow requirements consistent
with its business plan. MGM Group Holdings irrevocably and
unconditionally guaranteed the full and timely payment of the
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principal of (and interest on) the loans and advances to New MGM
under the working credit agreement. We cannot agree, however,
that MGM Group Holdings’ assumption of the $79 million receivable
was part and parcel of its 1993 guaranty.
First, under applicable State law, a guaranty is a secondary
or collateral liability, not a primary obligation. See Gen.
Phoenix Corp. v. Cabot, 89 N.E.2d 238, 243 (N.Y. 1949).176 A
guarantor’s obligation matures “when there is a default on the
separate and independent contract or agreement.” Columbia Hosp.
v. Hraska, 338 N.Y.S.2d 527, 529 (Civ. Ct. 1972); see 63 N.Y.
Jur. 2d, Guaranty & Suretyship sec. 113 (1987). Although it
appears that New MGM failed to make proper payment on the loans
and advances under the working capital agreement, there is no
indication that Credit Lyonnais ever demanded payment or treated
New MGM’s failure as a default under that agreement. More
importantly, there is no indication that Credit Lyonnais ever
called on MGM Group Holdings to make payment under its guaranty
or that the guaranty was otherwise triggered.
Second, the debt assumption and agreement fundamentally
changed the relationships of the various parties and resulted,
critically, in a new debt obligation. Cf. Banco Portugues do
176
The working capital agreement, MGM Group Holdings’
guaranty, and the debt release and assumption agreement each
recite that the terms of the agreement shall be construed in
accordance with and governed by the laws of the State of New
York.
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Atlantico v. Asland, 745 F. Supp. 962, 967 (S.D.N.Y. 1990) (“It
is well settled that ‘[w]hen the terms of the contract guaranteed
have been changed or the contract, as finally made, is not the
one upon which the surety agreed to become bound, he will be
released.’” (quoting Smith v. Molleson, 42 N.E. 669 (N.Y. 1896);
Lincoln Sav. Bank v. Murphy's Deluxe Limousine Serv., Inc., 556
N.Y.S.2d 102, 103 (App. Div. 1990))); Bier Pension Plan Trust v.
Estate of Schneierson, 74 N.Y.2d 312, 315 (Ct. App. 1989). After
Mr. Kerkorian made his $1.3 billion bid for New MGM, there was a
$79 million shortfall in the amounts available to pay off Credit
Lyonnais. As part of the stock purchase agreement, Mr. Kerkorian
required, as a condition precedent to closing on the sale of New
MGM, that this remaining debt amount be satisfied, canceled, or
extinguished at or before the closing. To effectuate the sale of
New MGM, Credit Lyonnais agreed to release New MGM entirely from
this liability and, in turn, caused MGM Group Holdings to assume
that debt amount.177 This assumption did not occur as a result of
MGM Group Holdings’ guaranty obligations. Instead, MGM Group
177
The debt release and assumption agreement provides:
The Parent [MGM Group Holdings] hereby assumes
principal of the Loans under the Credit Agreement in
the amount of $79,912,955.34 effective as of the date
hereof, immediately prior to the sale of Stock pursuant
to the Stock Purchase Agreement and for all purposes of
the Credit Agreement shall be treated as a Borrower, as
such term is defined under the Credit Agreement and all
references to Borrower shall be deemed to refer to and
include MGM Parent.
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Holdings ostensibly became the full-fledged obligor on the $79
million receivable without any of the typical rights that a
guarantor might have, such as, importantly, a right of
subrogation against a revitalized New MGM.178 Cf. Putnam v.
Commissioner, 352 U.S. 82, 89 (1956); In re Enron Corp., 307
Bankr. 372, 379 (S.D.N.Y. 2004); Restatement (Third) of
Suretyship and Guaranty, sec. 27 (1996).
Petitioner suggests that the Credit Lyonnais group’s
subjective judgment that MGM Group Holdings would have value was
reasonable and well-founded. Petitioner contends that the Court
should not, with the benefit of hindsight, substitute its
judgment for that of the Credit Lyonnais group.
We have no basis in the record for concluding that the
Credit Lyonnais group made a determination that MGM Group
Holdings would have value. Instead, the evidence points in the
opposite direction. For many years, the Credit Lyonnais group
had struggled to keep MGM afloat; to that end, it had lent
enormous sums to MGM. In 1993, the Credit Lyonnais group caused
MGM to be restructured into two companies with nearly $1 billion
in debt being funneled into MGM Group Holdings. The only
realistic chance of recovering on that debt was a lucrative sale
178
Pursuant to its guaranty under the working capital
agreement, MGM Group Holdings was entitled to “all rights of
subrogation otherwise provided by law in respect of any payment
it may make or be obligated to make under this Guaranty”.
Exhibit 72-J, J000071.
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of the MGM operating company. Once the MGM operating company was
sold, however, any hope of recovering the debts disappeared.
Without its MGM stock and a major cash or asset infusion, it
seems clear that MGM Group Holdings would have no meaningful
prospective value. Looking beyond the formality of MGM Group
Holdings’ assumption of the $79 million debt, Credit Lyonnais’s
intentions here point to the absence of a genuine debtor-creditor
relationship and bona fide indebtedness. See Muserlian v.
Commissioner, supra at 113; A.R. Lantz Co. v. United States, 424
F.2d 1330, 1333-1334 (9th Cir. 1970).
We conclude that MGM Group Holdings’ assumption of New MGM’s
$79 million debt obligation did not establish a valid debtor-
creditor relationship with the Credit Lyonnais group and did not
create a bona fide indebtedness for Federal tax purposes.
Because the $79 million receivable did not represent a bona fide
indebtedness, no basis was established in that receivable, and no
basis carried over to SMP on CLIS’s purported contribution of
that receivable.
VI. Corona Transaction
Respondent argues that Mr. Lerner structured the Corona
transaction for the sole purpose of duplicating the built-in loss
in the $79 million receivable. Respondent contends that there
was no business purpose for the Corona transaction and that Mr.
Lerner structured the transaction for the sole purpose of
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duplicating tax benefits. Respondent contends that Imperial
never intended to enter into a film finance business through
Corona. Petitioner contends that SMP and Imperial entered into
the Corona transaction with the bona fide business purpose of
film financing.
For the reasons discussed in more detail above, we conclude
that SMP had no basis in the $79 million receivable when it
contributed that receivable to Corona for a membership interest.
Consequently, SMP’s adjusted basis in its membership interest was
limited to its $250,000 cash contribution to Corona. Also, since
SMP had no basis in the $79 million receivable on its
contribution, Corona did not obtain any basis in that receivable
under section 723 when the receivable was contributed. Because
SMP did not receive a substituted basis in its membership
interest equal to the purported basis that it claimed in the $79
million receivable and because Corona did not receive any
carryover basis in the $79 million receivable, SMP is not
entitled to the substantial losses that it claimed from the sales
of its Corona membership interests to Imperial, and Corona is not
entitled to the substantial loss that it claimed from the sale of
the $79 million receivable to TroMetro. This analysis
effectively disposes of the issues relating to the Corona
transaction; however, for sake of completeness, we shall briefly
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address the parties’ contentions with respect to this
transaction.
We conclude that the Corona transaction and the subsequent
sale of the $79 million receivable were part of a general scheme
to obtain and exploit tax attributes in that receivable using the
partnership tax rules. Mr. Lerner effectively duplicated the
built-in loss that existed in the contributed $79 million
receivable. SMP also received approximately $15 million from
Imperial as a fee for the loss that Imperial realized on the sale
of the receivable to TroMetro.
We cannot agree that the parties entered into the
transaction with any intention of engaging in a film finance
business. Indeed, Imperial’s CEO, Wayne Snavely, testified that
tax losses were driving the Corona transaction and were the
primary reason in 1997 for Imperial’s investing in the Corona
transaction. He further testified that his analysis leading up
to the Corona transaction was directed primarily to the
transaction’s tax aspects and that to that end he directed
Imperial’s chief financial officer, Kevin Villani, to get
together with Imperial’s accountants to see whether the Corona
transactions and its tax advantages worked for Imperial.
Mr. Snavely acknowledged that he had a personal interest in
the film finance business; however, his testimony indicated
clearly that film finance was not considered as a reason for
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Imperial’s engaging in the Corona transaction. Indeed, although
Imperial held substantial membership interests in Corona after
its purchases of SMP’s membership interests, Mr. Snavely did not
know whether Corona ever financed or acquired any films, did not
know of any specific business transactions in which Corona
engaged, and did not recall seeing any written business plan for
Corona. We conclude that the Corona transaction was undertaken
for the sole purpose of duplicating the built-in loss in the $79
million receivable through a sale of SMP’s membership interests
in Corona to Imperial and Corona’s sale of the $79 million
receivable to TroMetro. The evidence in the record establishes
that Mr. Lerner orchestrated this plan from the beginning and was
responsible for its implementation. We conclude that the Corona
transaction, similar to the transaction involving CDR, was devoid
of business purpose and economic substance and therefore cannot
be respected for Federal tax purposes.
VII. Sales of Receivables to TroMetro
Respondent also argues that substance over form principles
apply to recast the sales of the $150 million, $81 million, and
$79 million receivables to TroMetro as sales by SMP to TroMetro
of an option to receive an equity interest in SMHC or its
successor. In support of this argument, respondent relies on the
facts that: (1) Mr. van Merkensteijn wanted SMHC stock and not
the SMHC receivables; (2) Messrs. Lerner and van Merkensteijn had
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discussions regarding TroMetro as a vehicle for purchasing the
receivables; (3) Mr. van Merkensteijn never expected to be paid
any principal or interest on those receivables; (4) the sales
were not conducted in an ordinary manner inasmuch as Mr. van
Merkensteijn relied upon the Sage Entertainment appraisal; and
(5) the transaction had no business purpose because Mr. van
Merkensteijn did not want the receivables but wanted the stock.
Although we question Mr. van Merkensteijn’s motivations for
purchasing the SMHC receivables in 1997 and 1998, we are not
persuaded that the facts that respondent highlights establish his
proposed application of substance over form principles.
Respondent appears to rely on the March 1, 1999, capital
contribution agreement between SMHC and TroMetro. Pursuant to
this agreement, TroMetro contributed, assigned, transferred, and
conveyed to SMHC all the interests that TroMetro owned and held
in the SMHC receivables in exchange for the right to receive 20
percent of all classes of stock of SMHC (or its successor),
exercisable by TroMetro any time after March 1, 2001.
Respondent, however, fails to establish the necessary link
between Mr. van Merkensteijn’s purchase of the receivables in
1997 and 1998, and his receipt of the stock option in 1999.
These transactions took place over several years, and, in the
absence of some additional evidence, we are not persuaded that
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respondent has met his burden of proof on this issue.179 Because
we decide, on alternative grounds, that SMP obtained no bases in
the SMHC receivables, this conclusion does not ultimately affect
our decision.
VIII. Summary of Conclusions So Far
We conclude that the banks’ contribution of the SMHC
receivables to SMP lacked economic substance and cannot be
respected for Federal tax purposes. We also conclude that SMP
obtained no basis in the SMHC receivables under section 723
(because the receivables were worthless) or in the $79 million
receivable (because that debt did not represent bona fide
indebtedness when it was assumed by MGM Group Holdings). In
addition, we conclude that the Corona transaction lacked economic
substance and likewise cannot be respected for Federal tax
purposes. For these reasons, we conclude: (1) SMP had no basis
in the $150 million receivable and the $81 million receivable
when those receivables were sold to TroMetro in 1997 and 1998;
(2) SMP had no basis in the $79 million receivable when it
contributed that receivable to Corona in 1997, and SMP’s basis in
its Corona membership interest under section 722 was limited to
the $250,000 cash contribution that it made to Corona; and (3)
Corona obtained no basis from SMP under section 723 in the $79
179
Respondent’s argument was raised as new matter in the
amendment to answer. Consequently, respondent bears the burden
of proof as to this issue. Rule 142(a).
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million receivable on its contribution and had no basis in that
receivable when it was sold to TroMetro in 1997.180 Consequently,
we hold: (1) SMP is not entitled to a $147,486,000 capital loss
on its sale to TroMetro of the $150 million receivable in 1997;
(2) SMP is not entitled to capital losses of $11,647,367 and
$62,237,061 on its sales to Imperial of portions of its Corona
membership interest in 1997; (3) SMP is not entitled to a
$80,190,418 capital loss on its sale to TroMetro of the $81
million receivable in 1998; and (4) Corona is not entitled to a
capital loss on its sale to TroMetro of the $79 million
receivable in 1997.181
180
We also conclude that the step transaction doctrine
applies to recast the banks’ contributions of the SMHC
receivables and stock as direct sales of those properties from
the banks to Somerville S Trust, followed by Somerville S Trust’s
contributions of the SMHC receivables and stock to SMP in
exchange for preferred interests in SMP. Presumably, Somerville
S Trust would be entitled to a cost basis totaling $10 million in
the SMHC receivables and stock, which would carry over to SMP
under sec. 723. The parties have not addressed the manner in
which the $10 million basis amount would be divided among the
receivables and stock; because we decide on alternative grounds
that SMP received a zero basis in the SMHC receivables, we need
not decide this issue.
181
Corona claimed a $78,768,955 capital loss on this
transaction. We do not have jurisdiction over the $74,671,378
portion of the loss that Corona claimed on its 1997 return. See
supra note 7. As a practical matter, the effect of our holding
is to disallow the $4,097,577 portion of the claimed loss that
flowed through to SMP.
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IX. At-Risk and Passive Activity Loss Rules
Respondent argues, alternatively, that to the extent the
losses SMP and Corona reported on their partnership tax returns
are allowed, certain partnership-level determinations relating to
the at-risk and passive activity loss rules must be made in this
proceeding.182 Petitioner argues that we do not have jurisdiction
over at-risk and passive activity loss determinations in a
partnership-level proceeding, and that these issues must be
resolved only in an affected-item proceeding at the partner
level. Because our decision in these cases results in a
disallowance of the losses that SMP and Corona claimed on their
182
Under sec. 465, respondent argues that to the extent the
losses SMP reported on its sales of the $150 million and $81
million receivables are allowed, those losses arose from a film
activity that was a separate activity from its other investment
activities for purposes of applying the at-risk limitation rules.
Respondent argues that to the extent the loss Corona reported on
its sale of the $79 million receivable is allowed, that loss
arose from a film activity that was a separate activity from its
portfolio investment activities for purposes of applying the at-
risk limitation rules.
Additionally, under sec. 469, respondent argues that to the
extent the losses SMP reported on its sales of the $150 million
and $81 million receivables and the portions of its Corona
membership interests, and any flow-through losses from Corona,
are allowed, those losses arose from a film trade or business
that cannot be combined with other trade or business activities
in SMP. Respondent argues that to the extent the loss Corona
reported on its sale of the $79 million receivable is allowed,
that loss arose from a film trade or business that cannot be
combined with other trade or business activities in SMP.
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partnership tax returns,183 we do not decide respondent’s at-risk
and passive activity loss arguments.
X. SMP’s Basis in SMHC Stock
On its Forms 1065, U.S. Partnership Return of Income, for
1997 and 1998, SMP reported that it had an adjusted basis of $665
million in its SMHC stock.184 In an amendment to his answer,
respondent proposes adjusting SMP’s reported tax basis in its
SMHC stock for these years to zero.
Petitioner agrees that this item is a partnership item but
challenges its relevance to the issues in this case. Petitioner
points to the fact that “SMP did not dispose of any stock during
the years before the Court or claim a loss from the sale of SMHC
stock.” Respondent’s position, however, appears more pointed--
respondent challenges SMP’s reporting of its SMHC stock basis
rather than its impact on the loss adjustments in the FPAA.
Section 6226(f) provides with respect to the scope of our
judicial review that we 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,
the proper allocation of such items among the partners,
and the applicability of any penalty, addition to tax,
or additional amount which relates to an adjustment to
a partnership item.
183
See supra note 6.
184
SMP’s adjusted basis in its SMHC stock is reported on
statements accompanying Schedules L, Balance Sheets per Books, of
its partnership returns.
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The Treasury regulation interpreting this section provides:
A court reviewing a notice of final partnership
administrative adjustment has jurisdiction to determine
all partnership items for the taxable year to which the
notice relates and the proper allocation of such items
among the partners. Thus, the review is not limited to
the items adjusted in the notice. [Sec. 301.6226(f)-
1T(a), Temporary Proced. & Admin. Regs., 52 Fed. Reg.
6779-01 (Mar. 5, 1987).185]
On the basis of section 6226(f) and the applicable
regulation, we could construe our jurisdiction over petitioner’s
1997 and 1998 taxable years to encompass SMP’s reporting of its
basis in SMHC stock. Nonetheless, if we were to exercise
jurisdiction over this item, and if we were to decide, as
respondent contends, that SMP’s basis in SMHC is zero, our
decision would result in no real tax adjustments at either the
partnership or partner level for the partnership taxable years at
issue.186 Conceivably, our decision might influence SMP’s
reporting for subsequent taxable years, but beyond this “in
terrorem” effect, it is unclear what impact such a decision would
185
A final regulation under sec. 6226 was promulgated
effective for partnership taxable years beginning on or after
Oct. 4, 2001. Sec. 301.6226(f)-1(c), Proced. & Admin. Regs.
186
Unlike River City Ranches #1 Ltd. v. Commissioner, 401
F.3d 1136 (9th Cir. 2005), affg. in part, revg. in part, and
remanding T.C. Memo. 2003-150, this is not a case where our
findings with respect to this matter are alleged to have any
bearing on penalty-interest under sec. 6621 or on any other
penalties. For instance, respondent has not alleged that an
adjustment to SMP’s reported basis in SMHC stock would give rise
to any underpayment for purposes of sec. 6662 accuracy-related
penalties.
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have on taxable years that are not before us in this proceeding.
For this reason, we cannot agree that Congress contemplated our
exercising jurisdiction over this type of adjustment. Cf. sec.
301.6226(f)-1T(b), Temporary Proced. & Admin. Regs., 52 Fed. Reg.
6788 (Mar. 5, 1987) (indicating that the reviewing court has
jurisdiction to determine an issue raised by a partner relating
to partnership’s treatment of certain costs).
We hold that we do not have jurisdiction to determine issues
related to SMP’s reporting of its basis in SMHC stock for its
1997 and 1998 taxable years.
XI. Accuracy-Related Penalties
Respondent determined that section 6662 accuracy-related
penalties apply with respect to the partnership adjustments for
SMP and Corona.187 In particular, with respect to SMP, respondent
determined that the section 6662(h) 40-percent penalty for gross
valuation misstatements applies to the underpayments that result
from adjustments to the tax bases that SMP reported on its 1997
187
In the Taxpayer Relief Act of 1997, Pub. L. 105-34, sec.
1238(a), 111 Stat. 1026, Congress amended sec. 6221 to include,
as an item to be determined at the partnership level, the
applicability of any penalty, addition to tax, or additional
amount which relates to an adjustment to a partnership item,
effective for partnership taxable years ending after Aug. 5,
1997. Consequently, we have jurisdiction in this partnership-
level proceeding to decide issues relating to the sec. 6662
penalties that respondent determined. Partner-level defenses,
however, must be asserted in a separate refund action following
assessment and payment. See sec. 6230(c)(1)(C), (4); cf. sec.
301.6221-1(d), Proced. & Admin. Regs. (effective for partnership
taxable years beginning on or after Oct. 4, 2001).
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and 1998 partnership tax returns in the $974 million in
receivables, the $79 million receivable, and SMP’s membership
interest in Corona. In the alternative, respondent determined
that the section 6662(a) 20-percent penalty for negligence,
disregard of rules or regulations, or substantial understatement
applies to the underpayments that result from these adjustments.
With respect to Corona, respondent argues that the section
6662(h) 40-percent accuracy-related penalty for gross valuation
misstatements applies to the underpayment that results from an
adjustment to the tax basis that Corona reported on its 1997
partnership tax return in the $79 million receivable. In the
alternative, respondent argues that the section 6662(a) 20-
percent accuracy-related penalty for negligence, disregard of
rules or regulations, or substantial understatement applies to
the underpayment that results from this adjustment.
A. Burden of Production
Section 7491(c) provides that the Commissioner shall have
the burden of production in any court proceeding with respect to
the liability of any “individual” for any penalty, addition to
tax, or additional amount imposed by the Code. Presumably on the
basis of this provision, petitioner argues that “Respondent bears
the burden of showing that Petitioners are liable for any
penalties.” We disagree.
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Section 7491(c), if applicable, imposes upon the
Commissioner only the burden of production with respect to
penalties, and not the burden of proof as petitioner suggests.188
See Higbee v. Commissioner, 116 T.C. 438, 446 (2001). Moreover,
by its terms, section 7491(c) applies only with respect to the
liability for penalties of any “individual”. By contrast,
section 7491(a), which provides the general rule for shifting the
burden of proof to the Commissioner in certain circumstances,
applies in ascertaining the liability of a “taxpayer”. Plainly,
by using the different terms “individual” and “taxpayer”,
Congress intended to distinguish the two terms. See sec.
7701(a)(14) (defining the term “taxpayer” to mean any person
subject to any internal revenue tax) and (a)(1) (defining the
term “person” to mean and include an individual, a trust, estate,
partnership, association, company, or corporation); see also sec.
7491(b) (limiting its application to an “individual taxpayer”);
cf. Elec. Arts, Inc. v. Commissioner, 118 T.C. 226, 258 (2002)
(“Ordinarily, in statutes and other legal documents, it is
presumed that if the drafter * * * varies the terminology, then
the drafter intends that the meaning also varies.”).
188
This burden of production, if applicable, requires the
Commissioner to “initially come forward with evidence that it is
appropriate to apply a particular penalty to the taxpayer”. H.
Conf. Rept. 105-599, at 241 (1998), 1998-3 C.B. 747, 995. This
provision is not intended, however, to require the Commissioner
to introduce evidence regarding reasonable cause, substantial
authority, or similar provisions. Id.
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In any event, we conclude that respondent has satisfied any
burden of production he might have under section 7491(c) with
respect to the appropriateness of applying accuracy-related
penalties in the instant cases. Consequently, petitioner must
come forward with evidence sufficient to persuade the Court that
respondent’s penalty determinations are incorrect. Higbee v.
Commissioner, supra at 447.
B. Gross Valuation Misstatements
A 20-percent accuracy-related penalty applies to the extent
that any portion of an underpayment is attributable to any
“substantial valuation misstatement”. Sec. 6662(a) and (b)(3).
There is a “substantial valuation misstatement” if “the value of
any property (or the adjusted basis of any property) claimed on
any return of tax imposed * * * is 200 percent or more of the
amount determined to be the correct amount of such valuation or
adjusted basis (as the case may be)”. Sec. 6662(e)(1)(A). In
the case of a “gross valuation misstatement”, the penalty
increases from 20 to 40 percent. There is a “gross valuation
misstatement” if the value of any property (or the adjusted basis
of any property) claimed on any return of tax imposed is 400
percent or more of the amount determined to be the correct amount
of such valuation or adjusted basis (as the case may be). Sec.
6662(e)(1) and (h)(2). In the case of multiple valuation
misstatements, the determination of whether there is a
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substantial or gross valuation misstatement on a return is made
on a property-by-property basis. Sec. 1.6662-5(f)(1), Income Tax
Regs. There is no disclosure exception to this penalty. Sec.
1.6662-5(a), Income Tax Regs.189
On its 1997 partnership tax return, SMP reported a $150
million basis in the $150 million receivable that it purportedly
sold to TroMetro. As a result of this basis reporting, SMP
claimed a $147,486,000 loss ($2,514,000 sale price minus $150
million adjusted basis). SMP reported a $63,489,061 basis in the
79.2-percent Corona membership interest that it sold to Imperial.
As a result of this basis reporting, SMP claimed a $62,237,061
loss ($1,252,000 sale price minus $63,489,061 adjusted basis).
SMP reported a $11,864,117 basis in the additional 14.65-percent
Corona membership interest that it sold to Imperial. As a result
of this basis reporting, SMP claimed an $11,647,367 loss
($216,750 sale price minus $11,864,117 adjusted basis).
We have concluded on alternative grounds that SMP obtained a
zero basis in the $974 million in receivables from Generale Bank
and the $79 million receivable from CLIS. Because the $79
189
The substantial or gross valuation misstatement penalty
applies only if the portion of the underpayment for the taxable
year attributable to substantial valuation misstatements exceeds
$5,000 ($10,000 in the case of a corporation other than an S
corporation or a personal holding company). Sec. 6662(e)(2). In
the case of a partnership, this dollar limitation is applied at
the partner level. Sec. 1.6662-5(h)(1), Income Tax Regs.
Consequently, we do not decide whether the dollar limitation
applies in these partnership-level proceedings.
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million receivable had a zero basis in SMP’s hands, SMP received
no carryover basis under section 722 in its Corona membership
interest on the contribution of that receivable to Corona.
Corona received no carryover basis under section 723 in the
contributed $79 million receivable. Consequently, SMP’s and
Corona’s basis reporting for the receivables was infinitely more
than 400 percent of the amount that we determined to be the
correct basis in the receivables.190 See sec. 1.6662-5(g), Income
Tax Regs. (“The value or adjusted basis claimed on a return of
any property with a correct value or adjusted basis of zero is
considered to be 400 percent or more of the correct amount.
There is a gross valuation misstatement with respect to such
property, therefore, and the applicable penalty rate is 40
percent.”); see also Rybak v. Commissioner, 91 T.C. 524, 566-567
(1988).
190
As an alternative holding, we have concluded that the
step transaction doctrine applies to recast Generale Bank’s and
CLIS’s contributions of the receivables and Somerville S Trust’s
purchases of Generale Bank’s and CLIS’s preferred interests in
SMP as direct sales of the SMHC receivables and stock from
Generale Bank and CLIS to Somerville S Trust followed by
Somerville S Trust’s contributions of those items for preferred
interests in SMP. Pursuant to this holding, Somerville S Trust
seemingly would receive a $10 million cost basis in the SMHC
receivables and stock which would carry over to SMP. The parties
have not addressed this issue, but presumably this $10 million
cost basis would be divided among the SMHC receivables and stock
on a proportional basis. The basis amounts that SMP reported on
its 1997 and 1998 partnership tax returns and Corona reported on
its 1997 partnership tax return would still exceed by far more
than 400 percent any $10 million cost basis in the receivables.
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Petitioner argues that the section 6662(h) gross valuation
misstatement penalty is inapplicable to the adjustments in these
cases. Petitioner contends that section 6662(h) has limited
application and applies only where the misstatement of adjusted
basis is attributable to an overvaluation of property. Petitioner
contends that the misstatements of basis in these cases are not
attributable to any overvaluation but instead are attributable to
the operation of the partnership basis rules. Stated
differently, petitioner’s position essentially is that section
6662(e) and (h) cannot apply where the alleged gross valuation
misstatement penalty is not directly attributable to an erroneous
overvaluation. We disagree.
Section 6662(e) and (h) refers to an underpayment that is
attributable to a “valuation misstatement”. The statute defines
“valuation misstatement” to include overstatements of “adjusted
basis”. Specifically, a substantial or gross valuation
misstatement occurs where “the value of any property (or the
adjusted basis of any property)” claimed on any tax return is at
least 200 percent (for a substantial valuation misstatement or
400 percent (for a gross valuation misstatement) of “the amount
determined to be the correct amount of such valuation or adjusted
basis (as the case may be)”. Sec. 6662(e)(1)(A) (emphasis
added). Consequently, Congress did not limit the definition of a
“valuation misstatement” to instances involving inflated
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valuations but included within that definition instances
involving inflated adjusted bases. See sec. 1.6662-5(h)(2),
Example, Income Tax Regs. (“Partnership P * * * claims a $40,000
basis in a depreciable asset which, in fact, has a basis of
$15,000. The determination that there is a substantial valuation
misstatement is made solely with reference to P by comparing the
$40,000 basis claimed by P with P’s correct basis of $15,000.”);
cf. Garrett v. Commissioner, T.C. Memo. 1997-231. On the basis
of the statutory definition, we cannot agree with petitioner that
an overvaluation is essential to the application of the section
6662(e) and (h) penalty.
Petitioner contends: “Outside of the Second Circuit, case
law covering the scope of the ‘valuation’ element of the
accuracy-related penalty has always emphasized that it is
applicable only to situations where the increased tax liability
is attributable to an actual misstatement of a valuation.”
Petitioner relies on Gainer v. Commissioner, 893 F.2d 225
(9th Cir. 1990), affg. T.C. Memo. 1988-416, and Todd v.
Commissioner, 862 F.2d 540 (5th Cir. 1988), affg. 89 T.C. 912
(1987). Gainer and Todd focused on the phrase “attributable to a
valuation overstatement” in former section 6659(a), the precursor
to section 6662(e) and (h).191 Pursuant to the holdings in those
191
In the Omnibus Reconciliation Act of 1989, Pub. L. 101-
239, sec. 7721, 103 Stat. 2395, Congress repealed former sec.
(continued...)
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cases, the portion of a tax underpayment that is attributable to
a valuation overstatement is to be determined after taking into
account any other proper adjustments to tax liability. See
Gainer v. Commissioner, supra at 228; Todd v. Commissioner, 89
T.C. 912, 916 (1987), affd. 862 F.2d 540 (5th Cir. 1988). Thus,
to the extent the taxpayer’s claimed tax benefits are disallowed
on grounds separate and independent from alleged valuation
overstatements, the resulting underpayments of tax are not
regarded as “attributable to valuation overstatements”. See
Krause v. Commissioner, 99 T.C. 132, 178 (1992), affd. sub nom.
Hildebrand v. Commissioner, 28 F.3d 1024 (10th Cir. 1994).
Neither Gainer nor Todd dealt with the definition of a “valuation
overstatement” or the application of the penalty to the reporting
of inflated adjusted bases in properties.192
In Gainer and Todd, the taxpayers made valuation
overstatements of certain property and claimed depreciation
191
(...continued)
6659 and consolidated the various accuracy-related penalties into
sec. 6662, carrying over the same essential language as sec.
6659. In the Omnibus Reconciliation Act of 1990, Pub. L. 101-
508, sec. 11312, 104 Stat. 1388-454 to 1388-455, Congress amended
sec. 6662, changing, inter alia, the phrase “valuation
overstatement” to refer to “valuation misstatement”.
192
Former sec. 6659(c), similar to current sec. 6662(e) and
(h), provided: “there is a valuation overstatement if the value
of any property, or the adjusted basis of any property, claimed
on any return is 150 percent or more of the amount determined to
be the correct amount of such valuation or adjusted basis (as the
case may be).”
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deductions and investment tax credits on the basis of these
valuations. This Court and the Courts of Appeals determined,
however, that the properties had not been placed in service;
therefore, the taxpayers’ claimed deductions were disallowed on
that ground and not because of any valuation overstatement.
Thus, in Gainer and Todd, this Court and the Courts of Appeals
disallowed the taxpayers’ tax benefits on grounds separate and
apart from the alleged valuation overstatements. In the instant
cases, however, each of our alternative holdings goes directly to
SMP’s and Corona’s correct adjusted bases in the contributed SMHC
receivables.
In Gilman v. Commissioner, 933 F.2d 143 (2d Cir. 1991),
affg. T.C. Memo. 1990-205, the Court of Appeals for the Second
Circuit applied the valuation overstatement penalty under former
section 6659 to an underpayment of taxes derived from a
transaction that was disregarded for lack of economic substance.
Because the taxpayer was deemed to have a zero basis, the
taxpayer’s claimed basis was infinitely larger than the amount
determined to be the correct basis (as would be any amount of
claimed basis, compared to zero). Acknowledging that applying
the valuation overstatement penalty “somewhat strains the natural
reading of the statutory phrase ‘valuation overstatement’”, the
court nevertheless held, consistent with other judicial
precedents applying the valuation overstatement penalty in the
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context of tax shelter transactions, that the penalty was
applicable. Id. at 151. The Court of Appeals observed:
“application of the section 6659 penalty surely reenforces the
Congressional objective of lessening tax shelter abuse.” Id.
The Court of Appeals in Gilman acknowledged that former
section 6659 might require some nexus with an overvaluation but
determined: “A transaction that lacks economic substance
generally reflects an arrangement in which the basis of the
property was misvalued in the context of the transaction.” Id.
at 152. The Court of Appeals determined that the lack of
economic substance in that case was due in part to a valuation
overstatement, relying on the absence of any reasonable
expectation of profit and the lack of value in the property that
the taxpayer purchased. Id. at 151; see also Massengill v.
Commissioner, 876 F.2d 616 (8th Cir. 1989), affg. T.C. Memo.
1988-427.
As in Gilman, valuation issues form a critical part of these
cases. For example, we have found that the absence of value in
the properties that Generale Bank and CLIS “contributed” under
the guise of the partnership rules indicates a lack of economic
substance in the transaction. We have also found that the
absence of value in these properties suggests a lack of economic
benefit in the transaction from the Ackerman group’s perspective
and indicates that the Ackerman group pursued the transaction
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with CDR, Generale Bank, and CLIS solely for tax purposes.
Moreover, in determining that the SMHC receivables were worthless
when they were contributed to SMP, we have relied on an extensive
examination of the values of the assets in SMHC. Consequently,
to whatever extent Gilman may require an indirect nexus to an
overvaluation of property, we conclude that such a nexus exists
in these cases.
We conclude that SMP’s 1997 and 1998 partnership tax return
and Corona’s 1997 partnership tax return contain gross valuation
misstatements for purposes of section 6662(e) and (h).
C. 20-Percent Accuracy-Related Penalties
Respondent determined, alternatively, that 20-percent
accuracy-related penalties apply under section 6662(a) with
respect to the adjustments to SMP’s 1997 and 1998 partnership tax
return and Corona’s 1997 partnership tax return. Respondent
asserts two grounds for imposing these penalties: negligence and
substantial understatement of income tax. We address each of
these grounds below.
1. Negligence
Section 6662(a)(1) imposes a 20-percent accuracy-related
penalty on any portion of an underpayment of tax required to be
shown on a return which is attributable to negligence or
disregard of rules or regulations. For purposes of section 6662,
the term “negligence” includes any failure to make a reasonable
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attempt to comply with Code provisions. Sec. 6662(c).
“Negligence is lack of due care or failure to do what a
reasonable and ordinarily prudent person would do under the
circumstances.” Marcello v. Commissioner, 380 F.2d 499, 506 (5th
Cir. 1967), affg. in part and remanding in part 43 T.C. 168
(1964) and T.C. Memo. 1964-299; see Neely v. Commissioner, 85
T.C. 934, 947 (1985). For purposes of section 6662, the term
“disregard” includes any careless, reckless, or intentional
disregard.193 Sec. 6662(c).
A return position that has a reasonable basis is not
attributable to negligence. Sec. 1.6662-3(a), Income Tax Regs.
A reasonable basis connotes significantly more than not being
frivolous or patently improper. Sec. 1.6662-3(b)(3), Income Tax
Regs. The reasonable basis standard is not satisfied by a return
position that is merely arguable or that is merely a colorable
claim. Id.
193
The term “rules or regulations” includes the provisions
of the Code, temporary or final regulations issued under the
Code, and revenue rulings or notices issued by the Internal
Revenue Service. Sec. 1.6662-3(b)(2), Income Tax Regs. A
disregard of rules or regulations is “careless” if the taxpayer
does not exercise reasonable diligence to determine the
correctness of a return position that is contrary to the rule or
regulation. Id. A disregard is “reckless” if the taxpayer makes
little or no effort to determine whether a rule or regulation
exists, under circumstances which demonstrate a substantial
deviation from the standard of conduct that a reasonable person
would observe. Id. A disregard is “intentional” if the taxpayer
knows of the rule or regulation that is disregarded. Id.
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Mr. Lerner is a highly educated, sophisticated tax attorney.
He worked for many years at O’Melveny & Myers; at one point, he
established and ran the firm’s London office. Mr. Lerner also
worked as a clerk/attorney-advisor with the U.S. Tax Court and as
an attorney advisor for the U.S. Treasury Department.
Mr. Lerner personally engineered a plan to transfer the
built-in losses in the defunct MGM Group Holdings from Generale
Bank and CLIS to the Ackerman group. This transaction had no
economic substance for Federal tax purposes. Instead, the
transaction was the equivalent of a sale of approximately $1.7
billion in tax attributes from Generale Bank and CLIS to
Somerville S Trust for $10 million. To exploit these tax
attributes, Mr. Lerner devised a second plan whereby SMP
purportedly sold portions of the receivables from Generale Bank
to TroMetro, which was owned by his friend, colleague, and
business associate, Mr. van Merkensteijn. Mr. Lerner also
devised a third plan whereby SMP transferred the $79 million
receivable to Corona for a membership interest, sold portions of
its Corona membership interest to Imperial, and caused Corona to
sell the $79 million receivable to TroMetro, effectively
duplicating the built-in losses in that receivable. In the
course of these various transactions, SMP reaped approximately
$300 million in tax losses and Corona reaped $79 million. SMP
also received a $14.5 million fee from Corona for the latter’s
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tax losses in the Corona transaction. Under the circumstances,
we believe that a reasonable and prudent person would recognize
that these tax losses were “‘too good to be true’”, especially
given that neither SMP, Corona, Somerville S Trust, nor Imperial
bore the economic loss associated with these tax losses. See
sec. 1.6662-3(b)(ii), Income Tax Regs.
Petitioner seeks to hide behind formal compliance with the
partnership tax rules. As an experienced tax attorney, Mr.
Lerner should have known that mere formal compliance with
statutory provisions would not sustain transactions that have no
economic substance and that are mere contrivances designed solely
to exploit tax benefits. Under the circumstances, we conclude
that reasonably prudent persons with Mr. Lerner’s tax experience
would not have conducted themselves as he did in reporting the
bases in the SMHC receivables and the substantial losses from the
transactions involving TroMetro and Imperial. Consequently, we
sustain respondent’s alternative determination that negligence
penalties are appropriate in these cases.194
194
Petitioner argues that negligence penalties do not apply
because the instant cases involve issues of first impression.
The accuracy-related penalty is inappropriate where an issue to
be resolved by the Court is one of first impression involving
unclear statutory language. Bunney v. Commissioner, 114 T.C.
259, 266 (2000); see Braddock v. Commissioner, 95 T.C. 639, 645
(1990) (holding penalties inapplicable where the issue has never
before been considered by any court, and the answer is not
entirely clear from the statutory language). Petitioner does not
point to the issues which he considers to be issues of first
(continued...)
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2. Substantial Understatement of Income Tax
Section 6662(a)(2) imposes a 20-percent accuracy-related
penalty on any portion of an underpayment of tax required to be
shown on a return which is attributable to any substantial
understatement of income tax. Sec. 6662(b)(1) and (2).
There is a “substantial understatement of income tax” for
any taxable year if the amount of the understatement of the
taxable year exceeds the greater of 10 percent of the tax
required to be shown on the return for the taxable year, or
$5,000. Sec. 6662(d)(1). For this purpose, the term
“understatement” generally means the excess of the amount of the
194
(...continued)
impression. The only issue that we decide against petitioner,
which might be construed as an issue of first impression, is
whether a contribution of worthless debts to a partnership
constitutes a “contribution of property” for purposes of sec. 721
and the partnership basis rules. This issue arises in our
holding sustaining respondent’s alternative argument regarding
basis; this issue is not directly implicated in our primary
holding that the transaction in question lacked economic
substance or in our alternative holding involving the application
of the step transaction doctrine. Moreover, this Court
previously decided that a contribution of worthless stock to a
corporation was not a “contribution” for purposes of the
analogous corporate carryover basis rules. See Seaboard
Commercial Corp. v. Commissioner, 28 T.C. 1034, 1054 (1957). The
Court of Appeals for the Eleventh Circuit in United States v.
Stafford, 727 F.2d 1043, 1052 n.14 (11th Cir. 1984), has also
considered whether a contribution of valueless property
represents a contribution of property for purposes of sec. 721 of
the partnership rules, concluding that it did not. Moreover, we
do not find the language of sec. 721 or the partnership basis
rules unclear. On the contrary, we find it to be quite obvious
from those Code sections that a contribution of worthless debt is
not a contribution of property. Consequently, petitioner cannot
avoid the negligence penalty on this basis.
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tax required to be shown on the return for the taxable year, over
the amount of the tax imposed which is shown on the return. Sec.
6662(d)(2)(A).195 The amount of the understatement is reduced by
that portion of the understatement that is attributable to the
tax treatment of any item by the taxpayer for which there is or
was substantial authority, if the relevant facts affecting the
item’s tax treatment are adequately disclosed in the return or in
a statement attached to the return and there is a reasonable
basis for the tax treatment of such item by the taxpayer. Sec.
6662(d)(2)(B). Petitioner relies on the substantial authority
standard as a defense to the application of the understatement
penalty.196
The substantial authority standard is an objective standard
involving an analysis of the law and application of the law to
195
In a partnership-level proceeding, we do not calculate
the understatement or determine whether it is substantial for
purposes of sec. 6662. Because the penalties apply at the
partner level, the understatement must be calculated on the basis
of the partner’s return and is the subject of a computational
adjustment. A partner may file a claim for refund on the ground
that the Secretary erroneously imposed any penalty which relates
to an adjustment to a partnership item. Sec. 6230(c)(1)(C), (4);
see sec. 301.6221-1(c) and (d), Proced. & Admin. Regs.
(applicable to partnership taxable years beginning on or after
Oct. 4, 2001).
196
Even if sec. 7491(c) is applicable, respondent is not
required to introduce evidence as to substantial authority.
Petitioner bears both the burden of production and the burden of
proof as to these issues. See Higbee v. Commissioner, 116 T.C.
438, 446-447 (2001); H. Conf. Rept. 105-599, at 241 (1998), 1998-
3 C.B. 747, 995.
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relevant facts. Sec. 1.6662-4(d)(2), Income Tax Regs. There is
substantial authority for a position if the weight of the
authorities supporting the treatment is substantial in relation
to the weight of authorities supporting contrary treatment. Sec.
1.6662-4(d)(3)(i), Income Tax Regs. Because the substantial
authority standard is an objective standard, the taxpayer’s
belief that there is substantial authority for the tax treatment
of an item is not relevant in determining whether there is
substantial authority for that treatment. Id. Relevant
authorities for this purpose are limited to materials such as
applicable provisions of the Code, regulations, revenue rulings
and revenue procedures, court cases, and legislative history.
Sec. 1.6662-4(d)(3)(iii), Income Tax Regs.197
Petitioner has cited no substantial authority that might
provide a basis for reducing any understatement of income tax.
In the first place, the transaction between the Ackerman group
and CDR, Generale Bank, and CLIS, had no economic purpose. The
transaction’s sole purpose was to transfer approximately $1.7
billion in built-in tax losses from the banks to Somerville S
Trust in exchange for a $10 million cash payment. Although these
197
Conclusions reached in legal opinions or opinions
rendered by tax professionals are not authority; however, the
authorities underlying such expressions of opinion where
applicable to the facts of a particular case may give rise to
substantial authority. Sec. 1.6662-4(d)(3)(iii), Income Tax
Regs.
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transfers were accomplished using the partnership basis rules, it
seems evident that Congress did not envision these rules’ being
used merely as a vehicle to transfer built-in losses from a tax-
indifferent party to an interested purchaser pursuant to a
prearranged plan. As relevant to these circumstances, the
authorities are clear and firmly established: a transaction that
lacks economic substance is not recognized for Federal tax
purposes. See, e.g., Ferguson v. Commissioner, 29 F.3d at 101.
Special rules apply in the case of a “tax shelter”, which
means a partnership or other entity, any investment plan or
arrangement, or any other plan or arrangement, if a significant
purpose of such partnership, entity, plan, or arrangement is the
avoidance or evasion of Federal income tax. Sec.
6662(d)(2)(C)(iii). In the case of any item of a taxpayer (other
than a corporation) which is attributable to a tax shelter, an
understatement shall not be reduced on the basis of substantial
authority unless the taxpayer reasonably believed that his tax
treatment of the item was more likely than not proper. Sec.
6662(d)(2)(C)(i)(I) and (II).
We have concluded that the transaction between the Ackerman
group and the Credit Lyonnais group had no economic substance,
its only purpose being to transfer built-in tax losses in
exchange for a $10 million cash payment. Consequently, this
arrangement is considered a “tax shelter” for purposes of section
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6662(d)(2)(C)(iii), and petitioner must demonstrate a reasonable
belief that SMP’s and Corona’s tax treatment of the transactions
in question was more likely than not the proper treatment. Given
Mr. Lerner’s education, sophistication, and tax experience, as
well as the particular circumstances of these cases, we do not
believe that there was such a reasonable belief.
A taxpayer is considered reasonably to believe that the tax
treatment of an item is more likely than not the proper tax
treatment if the taxpayer reasonably relies in good faith on the
opinion of a professional tax adviser; and if the opinion is
based on the tax adviser’s analysis of the pertinent facts and
authorities and unambiguously states that the tax adviser
concludes that there is a greater than 50-percent likelihood that
the tax treatment of the item will be upheld if challenged by the
IRS. Sec. 1.6662-4(g)(4)(B), Income Tax Regs. None of the tax
opinions that petitioner purportedly relied upon in preparing
SMP’s and Corona’s partnership tax returns unambiguously state
that there is a greater than 50-percent likelihood that the tax
treatment of the transactions at issue in these cases would be
upheld if challenged by the IRS. Moreover, for the reasons
discussed below, we conclude that Mr. Lerner did not reasonably
rely on those opinions. We conclude that petitioner did not have
substantial authority for his tax treatment of the transactions
at issue.
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D. Reasonable Cause
No penalty shall be imposed under section 6662 with respect
to any portion of an underpayment if it is shown that there was a
reasonable cause for such portion and that the taxpayer acted in
good faith with respect to such portion. Sec. 6664(c)(1).198 The
determination whether a taxpayer acted with reasonable cause and
in good faith is made on a case-by-case basis, taking into
account all pertinent facts and circumstances. Sec. 1.6664-
4(b)(1), Income Tax Regs. Generally, the most important factor
is the extent of the taxpayer’s effort to assess his proper tax
liability. Id. Circumstances that may indicate reasonable cause
and good faith include an honest misunderstanding of fact or law
that is reasonable in light of all of the facts and
circumstances, including the experience, knowledge, and education
of the taxpayer.199 Id.
198
The determination of whether a taxpayer acted with
reasonable cause and in good faith with respect to an
underpayment that is related to an item reflected on the return
of a pass-through entity is made on the basis of all pertinent
facts and circumstances, including the taxpayer’s own actions, as
well as the actions of the pass-through entity. Sec. 1.6664-
4(d), Income Tax Regs.
199
Petitioner bears the burden of production and burden of
proof with respect to the reasonable cause exception. Higbee v.
Commissioner, 116 T.C. at 446-447; H. Conf. Rept. 105-599, supra
at 241, 1998-3 C.B. at 995.
-285-
In arguing that the reasonable cause exception applies,
petitioner points to his efforts to verify the factual
underpinnings of the contributed assets.
Petitioner points first to the memorandum that Kaye Scholer
prepared in the course of Safari’s failed effort to acquire New
MGM. We cannot agree that Kaye Scholer’s memorandum establishes
reasonable cause for SMP’s and Corona’s reporting positions.
Although Kaye Scholer’s legal due diligence provided Mr. Lerner
with a detailed picture of the relationships between the Credit
Lyonnais group and the MGM companies and the various tax
attributes that the Credit Lyonnais group possessed, that legal
due diligence occurred in the context of a proposed acquisition
of New MGM. It did not involve the transactions at issue in the
instant cases. In addition, the Kaye Scholer investigation
occurred in or about May 1996, before the sale of New MGM and MGM
Holdings’s dissolution, events which might have profoundly
affected any of the conclusions that Kaye Scholer reached
regarding the various tax attributes.200
Petitioner points next to what he characterizes as an
extensive due diligence process involving his attorney, James
200
Petitioner contends that a major focus of this
investigation was establishing the amount of the NOLs, which
petitioner contends was an important aspect of the subsequent
transaction involving CDR. We cannot agree. Although Kaye
Scholer documented the NOLs in the various MGM companies, the
NOLs in MGM Group Holdings were by no means a “major focus” of
its investigation.
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Rhodes. Mr. Rhodes’s due diligence process, however, was
directed toward documenting the banks’ historical bases in the
SMHC receivables and stock and obtaining representations that the
banks did not write down the receivables or stock for accounting
or tax purposes or otherwise claim the tax attributes that the
Ackerman group sought to obtain. See Exhibit 183-P (document
entitled “Basis Chronology”). Mr. Rhodes conducted no due
diligence on the more germane issues of whether SMP received a
carryover basis in the SMHC receivables and stock, whether the
transaction had any substance for Federal tax purposes, whether
the assets underlying the SMHC receivables and stock had any
value, or whether the $79 million receivable represented bona
fide indebtedness.201
Petitioner also points to his reliance on the
representations that Generale Bank and CLIS made with respect to
their tax bases in the contributed SMHC receivables. In the
exchange and contribution agreement, CDR, Generale Bank, and CLIS
represented that they had received no payment of principal on the
SMHC receivables and had not written down their loans for
accounting or tax purposes. Like Mr. Rhodes’s due diligence
investigation, the banks’ representations do not extend to the
201
On May 12, 1997, Mr. Rhodes asked for and received a
confirmation from White & Case that neither CDR, Generale Bank,
nor CLIS derived any U.S. tax benefit from the contribution of
the SMHC receivables and stock or the subsequent disposition by
Generale Bank and CLIS of their preferred interests in SMP.
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particulars of the transaction between the Ackerman group and CDR
or otherwise indicate that the banks had the tax bases that Mr.
Lerner later claimed for the SMHC receivables.
In trying to meet the reasonable cause exception,
petitioner focuses principally on his purported reliance on
“outside” professional tax advice. Reliance on the advice of a
professional tax adviser constitutes reasonable cause and good
faith if, under all the circumstances, the reliance was
reasonable and the taxpayer acted in good faith. Sec. 1.6664-
4(b)(1), Income Tax Regs.; cf. United States v. Boyle, 469 U.S.
241 (1985). All facts and circumstances must be taken into
account in determining whether a taxpayer has reasonably relied
in good faith on the opinion of a professional tax adviser as to
the treatment of the taxpayer (or any entity, plan, or
arrangement) under Federal tax law. Sec. 1.6664-4(c)(1), Income
Tax Regs. The advice must be based upon all pertinent facts and
circumstances and the law as it relates to those facts and
circumstances. Sec. 1.6664-4(c)(1)(i), Income Tax Regs. For
example, the advice must take into account the taxpayer’s
purposes (and the relative weight of such purposes) for entering
into a transaction and for structuring a transaction in a
particular manner. Id. In addition, the taxpayer cannot
establish reasonable reliance if he fails to disclose a fact that
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he knows, or should know, to be relevant to the proper tax
treatment of an item. Id.
The advice must not be based on unreasonable factual or
legal assumptions (including assumptions as to future events) and
must not unreasonably rely on the representations, statements,
findings, or agreements of the taxpayer or any other person.
Sec. 1.6664-4(c)(1)(ii), Income Tax Regs. For example, the
advice must not be based upon a representation or assumption
which the taxpayer knows, or has reason to know, is unlikely to
be true, such as an inaccurate representation or assumption as to
the taxpayer’s purposes for entering into a transaction or for
structuring a transaction in a particular manner. Id.
Petitioner points to the following items that he claims he
relied upon: (1) An August 27, 1996, memorandum from Gerald
Rokoff and Alvin Knott of Shearman & Sterling to Mr. Lerner; (2)
an August 30, 1996, memorandum from Messrs. Rokoff and Knott of
Shearman & Sterling to Mr. Lerner; (3) a February 21, 1997, draft
memorandum from Robert Feinberg and Jeffrey N. Bilskie of Ernst &
Young, LLP, to James Rhodes; (4) a May 12, 1997, memorandum of
Messrs. Rokoff and Knott of Shearman & Sterling to Messrs. Lerner
and Rhodes; (5) an October 10, 1997, memorandum from Messrs.
Rokoff and Knott of Shearman & Sterling to Mr. Lerner and Cynthia
Beerbower; (6) a February 26, 1998, memorandum from Mr. Knott of
Shearman & Sterling to Mr. Lerner; (7) a May 1, 1998, memorandum
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prepared by Howard Levinton of Grant Thornton, LLP; and (8) a
December 11, 1998, letter of opinion prepared by Joseph R.
Valentino of Chamberlain, Hrdlicka, White, Williams & Martin.202
We evaluate petitioner’s reliance on these purported opinions in
turn.203
1. August 1996 Memoranda From Shearman & Sterling
Sometime before August 27, 1996, Mr. Lerner hired the law
firm of Shearman & Sterling, LLP, in New York City, to assist the
Ackerman group in the CDR transaction. Mr. Lerner testified:
202
Petitioner also offered into evidence a Jan. 3, 1997,
memorandum from Messrs. Rokoff and Knott of Shearman & Sterling.
The memorandum discusses a proposed transaction involving SMP’s
transfer of high-basis assets to an existing corporation as part
of a sec. 351 contribution. The memorandum does not analyze or
discuss the transaction between the Ackerman group and CDR. In
fact, the memorandum states that “P’s current members acquired a
substantial portion of their interests in transactions unrelated
to that described in” the memorandum. Although the memorandum
analyzes whether an “ownership change” would occur under the sec.
382 rules, it does so in the context of the built-in loss rules
(not the rules regarding NOL carryovers). The proposed
transaction apparently did not occur, and we cannot agree that
any reasonable person, let alone a sophisticated tax attorney
like Mr. Lerner, would place any reliance on it in determining
the proper treatment of the CDR transaction. In any event, Mr.
Lerner testified that he relied on this memorandum in preparing
SMHC’s corporate tax return and not in preparing SMP’s and
Corona’s 1997 and 1998 partnership tax returns.
203
Petitioner listed James Rhodes, Howard Levinton, Gerald
Rokoff, and Alvin Knott as witnesses in his pretrial memorandum.
Petitioner called none of these witnesses to testify at trial.
Instead, petitioner relies solely on his own testimony and the
various documents to establish his reasonable cause position.
The law firm of Chamberlain, Hrdlicka, White, Williams & Martin
represented petitioner in these cases. Joseph R. Valentino did
not testify.
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“When our conversation began with Rene Claude about acquiring MGM
Holdings, I already knew from the due diligence exercise before
that there were, I would say, complex tax issues arising from the
acquisition of that company”, including tax basis and NOL issues.
He testified that he asked Shearman & Sterling to give him “an
analysis of the ways in which a transaction could be organized
involving MGM Holdings so that any tax attributes that might have
existed could be preserved.”
Shearman & Sterling prepared two memoranda summarizing the
anticipated U.S. tax consequences of certain hypothetical
transactions involving MGM Holdings. Neither memorandum analyzes
the transaction that actually occurred between the Ackerman group
and CDR. Notably, the memoranda propose a section 351 corporate
transaction involving MGM Holdings: “In general, the most
favorable tax treatment would result if a section 351 transaction
took place in 1996, and the transactions triggering both the loss
and the gain took place in subsequent years.”204 The memoranda
204
In the first memorandum dated Aug. 27, 1996, Shearman &
Sterling analyzed two alternative transactions. In the first
alternative, the “Section 351 Transaction”, Acquirer, a U.S.
corporation, transfers property to a new or existing subsidiary
(“Sub”) in exchange for stock of Sub, and, concurrently, CDR
transfers all the stock of MGM Holdings to Sub in exchange for
cash and stock of Sub. After these transfers, Acquirer owns 80
percent of the vote and value of Sub. In the second alternative,
the “B Reorganization”, Acquirer acquires all the stock of MGM
Holdings from CDR in exchange for Acquirer’s publicly traded
voting common stock or voting preferred stock redeemable in 5
years.
(continued...)
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provide no analysis of the partnership basis rules (specifically
section 704(c)) but instead focus on the recognition or
nonrecognition of gain or loss under section 351, the
consolidated loss disallowance and separate return limitation
year rules under section 1502, the built-in loss limitations of
section 382, the section 384(a) pre-acquisition loss rules, and
the section 269(a)(2) disallowance rules for tax-motivated
corporate acquisitions. The memoranda propound a series of
hypothetical transactions, none of which appear to have actually
occurred, and do not rely on, or analyze, the relevant facts of
the CDR transaction.205 Consequently, we cannot agree that these
memoranda establish reasonable cause.
204
(...continued)
In the second memorandum dated Aug. 30, 1996, Shearman &
Sterling also analyzed two alternative transactions. In the
first alternative, the “Section 351 Transaction”, Acquirer, a
U.S. corporation (“GCo”), transfers property to a new or existing
subsidiary (“DCo”) in exchange for stock of DCo, and,
concurrently, CDR transfers all the stock of MGM Holdings to DCo
in exchange for cash and stock of DCo. Immediately after these
transfers, GCo owns at least 80 percent of the vote and value of
DCo. In the second alternative, the “B Reorganization”, GCo
acquires all the stock of MGM Holdings from CDR in exchange for
GCo’s publicly traded voting common stock or voting preferred
stock redeemable in 5 years.
205
The memoranda were prepared before the closing date of
the New MGM transaction and MGM Holdings’s dissolution. Although
the memoranda acknowledge the New MGM sale and the existence of
tax attributes in MGM Holdings, the memoranda are framed in terms
of CDR’s “expected” basis in MGM Holdings’s stock following the
sale. The memoranda do not analyze these expectations or provide
any insight regarding CDR’s basis in MGM Group Holdings or the
effect of a dissolution of MGM Holdings.
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2. Ernst & Young Memorandum
On February 21, 1997, Robert Feinberg and Jeffrey N. Bilsky
of Ernst & Young, LLP, prepared a draft memorandum which it sent
to Mr. Rhodes. The draft memorandum is not an opinion letter and
is entitled “DRAFT”. It purports to address SMP’s claimed tax
basis in the SMHC receivables and stock; however, it repeatedly
emphasizes that the scope of its review is limited, incomplete,
and cannot be relied on except for internal purposes.206 For
example, the draft memorandum begins:
As you know, we have not been asked to perform a
comprehensive tax basis study with respect to the
subject assets. Consequently, the scope of our
services and related procedures have been limited to
reviewing the available materials and commenting as to
their relevance and reasonableness for use in
determining the tax basis of the assets. To the extent
that additional documents and information become
available, we will need to review our analysis since it
could be materially affected.
Our analysis may be used by current management of Santa
Monica solely for internal purposes and may not be
disclosed to third parties. When we are fully informed
of the intended use of the information, including
review of all related materials expected to be issued,
we can further review whether disclosure to any third
parties will be acceptable.
206
With respect to the SMHC receivables, Ernst & Young
reached a rather ambivalent conclusion: “We have seen nothing
inconsistent in the materials made available to date with the
view that the outstanding balance of the receivable in the hands
of Santa Monica could be as high as the amount reflected on the
contribution agreement”.
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The draft memorandum ends with the following statement:
Given the limited scope of our review, and your desire
for us to emphasize a quantitative as opposed to a
qualitative review, please appreciate that more
detailed procedures, analysis and review would be
necessary before any reliance should be placed on our
analysis for tax return or other tax filing purposes.
We will be pleased to further discuss the opportunity
for Ernst & Young LLP to become engaged to provide a
more detailed analysis of tax basis.
We believe that the draft memorandum speaks for itself--any
reliance on that memorandum in preparing tax returns would be
plainly unreasonable.
3. May 12, 1997, Shearman & Sterling Memorandum
On May 12, 1997, Gerald Rokoff and Alvin Knott of Shearman &
Sterling prepared a memorandum addressed to Messrs. Lerner and
Rhodes discussing certain issues relating to the CDR transaction
and SMP’s bases in the SMHC receivables and stock. Mr. Lerner
testified that this memorandum was prepared in connection with a
possible merger transaction in which SMP’s stock and debt
interests in SMHC would be contributed to SMHC or another holding
company. In connection with this proposed transaction, Mr.
Lerner testified that he sought and received the advice of
Shearman & Sterling as to whether the $79 million receivable and
the $974 million in receivables should be treated as worthless or
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partially worthless, and whether the SMHC stock should be treated
as worthless.207
The May 12, 1997, memorandum appears to have been prepared
as part of an effort to secure an outside opinion letter or
advice with respect to the CDR transaction. Indeed, the letter
begins by stating: “At your request, we have prepared the
following responses to the requests for additional background
materials set forth in Donald Alexander’s memorandum to you,
dated April 9, 1997.”208 In this regard, the May 12, 1997,
memorandum from Shearman & Sterling has a distinct quality of
advocating Mr. Lerner’s position rather than providing advice
that might reasonably be relied upon in preparing SMP’s and
Corona’s 1997 and 1998 partnership tax returns.
The opinion itself deals primarily with the worthlessness
issue and concludes that the SMHC receivables and stock were not
207
Gerald Rokoff and Alvin Knott do not appear to have been
independent, “outside”, professional tax advisers, as petitioner
claims. Messrs. Rokoff and Knott represented the Ackerman group
in the CDR transaction and assisted Mr. Lerner in structuring the
partnership transactions at issue. Messrs. Rokoff and Knott
appear to have been actively involved in structuring transactions
for the Ackerman group’s subsequent exploitation of the acquired
built-in loss tax attributes, including as we explain below, the
“marketing” of the tax attributes to an outside “investor”.
208
Petitioner did not offer Donald Alexander’s memorandum
into evidence, and we have no basis for ascertaining its context.
There is no indication that Mr. Alexander (a former IRS
Commissioner) ever provided any favorable advice to petitioner
with respect to the proposed transaction or the issues discussed
in Shearman & Sterling’s memorandum.
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worthless when those assets were contributed to SMP. In
addressing that issue, Shearman & Sterling discusses Los Angeles
Shipbuilding & Drydock Corp. v. United States, 289 F.2d 222 (9th
Cir. 1961) and Higgenbotham-Bailey-Logan Co. v. Commissioner, 8
B.T.A. 566 (1927), cases which we have discussed supra in the
context of the worthlessness issue. In concluding that the SMHC
receivables were not worthless under those cases, Shearman &
Sterling relied on the faulty factual assumption that the EBD
film rights and Carolco securities had considerable value.209 The
memorandum provided the following analysis:
Debt of a corporation, such as * * * [SMHC], which
has valuable assets that could be sold or exploited to
pay off a portion of the debt is certainly not
worthless. * * * [SMHC] has retained extensive films
rights and properties which had been acquired by Credit
Lyonnais in connection with its lending activities.
Those rights include distribution rights to
approximately sixty-five films, sequel rights and film
development rights. In addition, * * * [SMHC] also
owns approximately $60 million (face value) of the
securities of Carolco, Inc., which is engaged in
bankruptcy proceedings. The Company [SMP] is actively
exploiting * * * [SMHC’s] film rights and the Company
has commenced discussions with a number of parties to
acquire additional film libraries. The Company is also
pursuing its rights to maximize its recovery of its
investment in Carolco.
We understand that * * * [SMHC’s] rights in the
Carolco investment have been valued at approximately
$11 million. The projected income stream from the next
cycle of * * * [SMHC’s] film rights has been estimated
to have a present value of approximately $29 million
and a future value in excess of $35 million. This
209
The Shearman & Sterling memorandum does not discuss
whether the NOLs in SMHC had any value.
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estimate does not include sequel rights, development
projects, residual values or the proceeds of subsequent
distribution cycles. The members of the Company
believe that the going concern value of * * * [SMHC]
should be based on a market multiple of * * * [SMHC’s]
anticipated earnings. This valuation should take into
account the contribution to be made by the joint
ventures under consideration and the exploitation of
* * * [SMHC’s] additional rights. The valuation
currently given for comparable companies is in the
range of 8 to 15 times earnings.
When this memorandum was prepared it would have been clear,
at least to Mr. Lerner, that SMP was not “pursuing its rights to
maximize its recovery of its investment in Carolco.” The record
contains no indication of any such efforts; indeed, as of April
3, 1997, the bankruptcy court had confirmed the fourth amended
plan of reorganization and also had confirmed that SMHC would
receive nothing for the Carolco securities.
Shearman & Sterling’s conclusions were also based, in part,
on the dubious Sage Entertainment appraisal of the EBD film
rights and the Harch Capital Management report regarding the
Carolco securities. For the reasons discussed supra, we do not
believe that Mr. Lerner reasonably relied on those purported
appraisals. Moreover, although the memorandum was dated May 12,
1997, Mr. Lerner claims that he relied on it in October 1998 and
October 1999, when SMP’s and Corona’s partnership tax returns
were prepared and filed. Clearly, by this time, on the basis of
Troy & Gould’s conclusions, Mr. Lerner should have recognized
that Mr. Kutner’s conclusions could not be relied upon.
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The memorandum also provides some discussion of the
transaction with CDR, describing it as follows:
The Rockport Members interest in * * * [SMHC] did not
originate with a desire to obtain a favorable tax
attribute that could be used as a tax shelter. Rather,
their interest originated in a desire to acquire all
the assets of MGM and, when it became clear that they
would not be able to acquire all such assets, to
acquire certain valuable assets that remained. * * *
The Rockport Members then decided to acquire an
interest in * * * [SMHC]. GB and CLIS wanted to retain
some interest in * * * [SMHC]. In this context, the
Rockport Members, GB and CLIS, each for their own valid
business reasons, became members of the Company in a
way that made it possible to preserve a favorable tax
attribute, namely the basis of the MGM Debt and the MGM
Stock.
On this basis, Shearman & Sterling concluded:
No transaction involving the Company should be
recharacterized under substance over form principles.
GB, CLIS and the Rockport Members became members by
contributing property to the Company. At the time GB
and CLIS transferred the MGM Debt and the MGM Stock to
the Company, they were under no obligation to transfer
any portion of their interest in the Company to any
person. Thereafter, the Somerville S Trust purchased
interests from GB and CLIS. GB and CLIS should not be
treated as selling the MGM Debt and the MGM Stock to
the Rockport Members who then contributed such property
to the Company. Although courts have been willing to
step transactions together, they have generally been
reluctant to reverse the order of steps. [Discussing
Esmark & Affiliated Cos. v. Commissioner, 90 T.C. 171
(1988).]
Shearman & Sterling’s description of the CDR transaction and
its conclusion are based on faulty factual assumptions regarding
the Ackerman group’s purposes for entering into the transaction
with CDR, Generale Bank, and CLIS. To wit, we have concluded
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that the Ackerman group entered into the transaction solely to
exploit the banks’ built-in losses using section 704(c). The
parties did not intend to partner in any film business; the
parties had a prearranged understanding that the banks would
exercise their put rights and immediately exit the partnership.
Petitioner cannot rely on Shearman & Sterling’s “advice”, which
unreasonably assumes a different purpose for the transaction and
its structure. Sec. 1.6664-4(c)(1)(ii), Income Tax Regs.
Shearman & Sterling’s May 12, 1997, memorandum was not
prepared in connection with the filing of SMP’s and Corona’s 1997
or 1998 partnership tax returns. Further, Mr. Lerner testified
only that he relied on that memorandum in preparing SMHC’s 1997
corporate tax return. He did not testify that he relied on the
memorandum to prepare SMP’s and Corona’s returns. In any event,
we conclude that any such reliance would have been unreasonable.
4. October 10, 1997, Shearman & Sterling Memorandum
Gerald Rokoff and Alvin Knott of Shearman & Sterling
prepared another memorandum dated October 10, 1997. The
memorandum purports to summarize the anticipated tax consequences
of a proposed joint venture between the Ackerman group and “GCo”,
a U.S. corporation.210 The memorandum proposes two hypothetical
structures for this joint venture, a corporate structure and a
210
The memorandum does not identify “GCo” but acknowledges
that Crown Capital might deliver the memorandum to “GCo” in the
course of discussions.
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partnership structure, and outlines the anticipated tax
consequences to the parties. It states: “In each proposed
structure, we believe that neither party should recognize current
gain or loss and that GCo, through the entity conducting the
joint venture, should effectively receive a carryover tax basis
in the assets of the joint venture.”
The memorandum begins with a short “BACKGROUND” section that
describes the New MGM transaction and the transaction with CDR.
Shearman & Sterling reiterates its erroneous factual assumptions
(almost verbatim) from its May 12, 1997, memorandum; i.e., that
SMHC retained extensive film rights and properties, including the
65 EBD film titles, which had a present value of $29 million and
a future value in excess of $35 million and that SMP was actively
pursuing its rights to maximize its recovery of its investment in
the Carolco securities, which had been valued at approximately
$11 million.
The memorandum proposes a section 351 transaction similar to
the transactions hypothesized in Shearman & Sterling’s August
1996 memoranda. The memorandum discusses similar legal issues
and reaches similar conclusions as in the other memoranda. The
memorandum also proposes a partnership transaction in which GCo
acquires 45 percent of the preferred interests and 45 percent of
the common interests in the partnership from the Ackerman group
for cash. Under the proposed transaction, GCo would receive an
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allocation of 45 percent of the built-in loss with respect to the
SMHC receivables and stock. Shearman & Sterling then provided
the following legal analysis with respect to the transaction:
The Proposed Partnership Transaction should not be
recharacterized under the partnership anti-abuse
regulation because:
(a) Subchapter K, specifically section 704(c) and
the regulations promulgated thereunder, contemplates
and indeed mandates, the tax results set forth above;
and
(b) Although the parties will structure the
Proposed Partnership Transaction to maximize their
after-tax yield, GCo and the Rockport Members will
engage in the joint venture for bona fide commercial
purposes, namely to jointly develop the existing assets
of the Company and GCo, and to invest together on a
continuing basis through the Company.
The memorandum provides no further legal discussion; for example,
there is no discussion as to whether the transaction passes
muster under the economic substance doctrine or the step
transaction doctrine. Moreover, the hypothetical transaction
described in the memorandum differs fundamentally from the
transaction involving the Ackerman group, CDR, Generale Bank, and
CLIS. For instance, the proposed transaction does not
contemplate that any of the partners will exit the partnership,
and it assumes that the joint venture will be for bona fide
commercial purposes.
Shearman & Sterling’s October 10, 1997, memorandum was not
prepared in connection with the filing of SMP’s and Corona’s 1997
or 1998 partnership tax returns. It did not relate to a
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transaction that actually occurred involving SMP, Corona, or the
Ackerman group, and Mr. Lerner did not testify that he
specifically relied upon it in preparing SMP’s and Corona’s
returns. We conclude that any reliance on the memorandum would
have been unreasonable.
5. February 26, 1998, Shearman & Sterling Memorandum
Alvin Knott of Shearman & Sterling prepared another
memorandum dated February 26, 1998, regarding the criteria for
recharacterizing debt as equity. Mr. Lerner testified that at
some point in early 1998, he was considering whether SMP should
capitalize the SMHC receivables. He testified: “It’s fair to
say that the debt was not performing at that time”, and he sought
and received the advice of Shearman & Sterling on the debt versus
equity issue.211
Respondent does not argue that the SMHC receivables should
be recharacterized as equity. Nonetheless, the Shearman &
Sterling memorandum addresses certain points that might be
relevant to our decision that the $79 million receivable did not
arise from a bona-fide debtor-creditor relationship. Shearman &
Sterling indicates: “Of the total amount loaned to MGM pursuant
211
Shearman & Sterling’s Feb. 26, 1998, memorandum again
relies on the same faulty factual assumptions: that SMHC held
valuable film rights estimated to have a present value of
approximately $29 million and a future value in excess of $35
million, and that SMHC was also pursuing its rights to maximize
the recovery of its investment in Carolco.
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to * * * [working capital agreement], $298,835,633.58, or 79% of
the loan, was repaid. As late as mid-1996, and for all periods
prior thereto, there was a clear expectation that the Holdings-
CLIS Debt would be paid.”
Shearman & Sterling concluded that the $79 million
receivable represented a valid debt interest when issued because,
inter alia, the parties were unrelated, the terms of the debt
were largely based on terms negotiated at arm’s length when the
parties were unrelated, and MGM Group Holdings had the capacity
to pay at least some of the debt from its assets. Shearman &
Sterling did not analyze whether MGM Group Holdings’ assumption
of the $79 million receivable represented a new debt and whether
that assumption established a valid debtor-creditor relationship.
Insofar as we have concluded that the $79 million represented new
debt, Shearman & Sterling’s conclusions are erroneous. Credit
Lyonnais, the creditor with respect to the $79 million
receivable, was the parent company of CLIS. CLIS, in turn, was
the sole shareholder of MGM Group Holdings when that entity
assumed New MGM’s $79 million debt obligation to Credit Lyonnais.
MGM Group Holdings, in turn, was the sole shareholder of New MGM.
All the parties were related, with Credit Lyonnais pulling the
strings. The assumption of the $79 million debt was not
negotiated at arm’s length. After New MGM was sold, MGM Group
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Holdings lacked the capacity to repay the debt from its assets--
it had no assets of any discernible value.
Shearman & Sterling’s memorandum is limited to the debt
versus equity issue. It does not discuss any other relevant
issues. The memorandum was not prepared in connection with the
filing of SMP’s and Corona’s 1997 and 1998 partnership tax
returns. It was offered into evidence only for the purpose of
showing that Mr. Lerner relied on it in characterizing the SMHC
receivables as debt on SMP’s 1998 partnership tax return. We
conclude that this memorandum does not provide reasonable cause
for SMP’s or Corona’s tax treatment with respect to the relevant
issues in these cases.
6. Grant Thornton Memorandum
The Ackerman group hired the accounting firm of Grant
Thornton, LLP, as its accountants for SMP and SMHC. Howard
Levinton, who was a tax partner at Grant Thornton, was assigned
to SMP and SMHC. In connection with the preparation of SMP’s and
SMHC’s tax returns, Mr. Levinton prepared a memorandum dated
May 1, 1998, concerning the tax issues regarding SMP. Mr. Lerner
testified: “I was particularly interested in his analysis of the
fact that Credit Lyonnais unexpectedly put the interest to us
easily a year ahead of what I expected it. Not that I expected
it at all. I thought that was very relevant in the preparation
of the return because it affected any number of issues.” Mr.
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Lerner testified that he relied on this memorandum with respect
to SMP’s 1997 partnership tax return.
Initially, we question whether Mr. Lerner ever received the
memorandum that Mr. Levinton prepared, let alone whether he
relied upon it with respect to SMP’s 1997 return. The memorandum
is not addressed to Mr. Lerner but is addressed to “File” and is
entitled “Inter Office Memorandum”. The memorandum is not an
opinion letter, and there is no indication that Mr. Levinton
prepared the memorandum intending that Mr. Lerner rely on it with
respect to SMP’s 1997 return. Although petitioner listed Mr.
Levinton as a potential witness in his pretrial memorandum,
petitioner did not call Mr. Levinton to testify.
In reaching his conclusions, Mr. Levinton relies on a number
of assumptions, including: (1) SMP was formed to exploit the
remaining film libraries owned directly by CLIS; (2) Generale
Bank and CLIS demanded the side letter agreement because of the
absence of a clearly defined exit strategy; and (3) after
Generale Bank and CLIS joined SMP as partners, the French
government, exercising its rights to regulate its banking
industry, determined that Generale Bank and CLIS should cease
their involvement in the movie business. Petitioner failed to
establish that any of these assumptions are accurate. The
evidence in the record indicates that SMP was formed to
facilitate the transfer of $1.7 billion of built-in losses from
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Generale Bank and CLIS to the Ackerman group and that the banks
demanded the side letter agreement because they full intended and
planned to exit SMP as expeditiously as possible. There is no
evidence that the banks exited SMP as a result of the French
government’s intervention.
Mr. Levinton examined the operation of the partnership tax
rules, including sections 721, 722, 723, and 704(c), as well as
the regulations thereunder. He concluded that “assuming the form
of the transaction is respected, Rockport would succeed to the
position of CLIS and GB with respect to the built in loss
attributable to their contributed property.”
Mr. Levinton referred to Shearman & Sterling’s May 12, 1997,
memorandum, agreeing: “The debt will not be worthless.” Mr.
Levinton pointed out that upon the formation of SMP, the
contributed stock and debt were “valued” at $5 million in the
aggregate and that this might present an argument as to whether
the debts were nominal or “de minimis”; however, he concludes
that $5 million is not nominal or “de minimis” compared to $0.
Mr. Levinton did not discuss the value of the assets underlying
the debts and stock and assumed, without any explanation, that
the stock and debt had a value of $5 million.
Mr. Levinton alluded to Generale Bank’s and CLIS’s put
rights in the side letter agreement and observed:
Cast in its most unfavorable light, it could be argued
that, at the same time CLIS and GB were negotiating to
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enter the LLC; they were negotiating to exit the LLC.
The ultimate fact to be drawn from that unfavorable
assumption is that CLIS and GB never intended to be,
and never in fact were, true partners. If the
participation of CLIS and GB as partners in the
transaction is ignored, then Rockport would be deemed
to have purchased the stock and debt from GB and CLIS
on December 31 rather than the Preferred Interests, and
such stock and debt would then be considered to have
been contributed to the LLC at a basis equal to the
purchase price to Rockport paid to CLIS and GB rather
than the $1.7 billion. In other words, CLIS’s and GB’s
transitory ownership of LLC member interests would be
disregarded.
Mr. Levinton then examined whether the partnership antiabuse
regulation or the step transaction doctrine would apply to
disregard Generale Bank’s and CLIS’s contributions to SMP and
recast the transactions as a direct sale of the high-basis
receivables and SMHC stock. Mr. Levinton concluded that these
legal theories would not apply because: (1) Generale Bank and
CLIS intended to become members of SMP and to remain participants
in a film venture; (2) it was only an extraneous and unforeseen
circumstance that caused Generale Bank and CLIS to exercise their
put rights; (3) Generale Bank and CLIS had no immediate intention
to sell their preferred interests to Rockport or anyone else; and
(4) the relationships created through the contributions of debt
and stock were bona fide and not undertaken in a manner designed
to shift a tax loss to, or create a tax loss for, a U.S.
taxpayer.212
212
Mr. Levinton examined, in great detail, Esmark &
(continued...)
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For the reasons discussed in great detail in this opinion,
Mr. Levinton’s assumptions about Generale Bank’s and CLIS’s
intentions to partner in a film venture with the Ackerman group
are erroneous and contrary to what we have found to be Mr.
Lerner’s understanding of the CDR transaction. Consequently, we
cannot agree that Mr. Lerner reasonably relied on Mr. Levinton’s
memorandum in filing SMP’s 1997 partnership tax return.
7. Opinion From Chamberlain Hrdlicka
In 1998, Mr. Lerner sought and received the advice of
Chamberlain, Hrdlicka, White, Williams & Martin (Chamberlain
Hrdlicka) concerning the tax issues regarding SMP. Joseph R.
Valentino of Chamberlain Hrdlicka prepared a memorandum to Mr.
Lerner dated December 11, 1998, regarding the adjusted basis for
Federal income tax purposes that SMP had in the SMHC receivables
and stock.
The Chamberlain Hrdlicka memorandum consists of 19 pages.
Eleven of the 19 pages are dedicated to a statement of facts.
212
(...continued)
Affiliated Cos. v. Commissioner, 90 T.C. 171 (1988). Mr.
Levinton posited that “the pivotal factual issue that makes
Esmark persuasive, if not controlling, is that GB and CLIS
entered the LLC with the intention of remaining participants in
it, and with no immediate intention to sell to Rockport or anyone
else”. Mr. Levinton cautioned, however, that the Generale Bank’s
and CLIS’s contributions to SMP in exchange for preferred
interests might be viewed as a meaningless step under Esmark, if
neither Generale Bank nor CLIS ever intended to become members of
SMP and did so only as an intermediate and meaningless step in
disposing of the stock and receivables.
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These facts are for the most part undisputed and relate primarily
to the history of MGM and the SMHC receivables and stock. Of the
remaining eight pages in the memorandum, six are dedicated to
“QUALIFICATIONS AND LIMITATIONS” to the opinion. This section of
the opinion states, among other things, that “our understanding
is based upon certain assumptions [42 in toto] that you have
allowed us to make, the accuracy of which we have not
independently investigated.” These assumptions include, among
many others:
33. At the time of the Exchange Agreement, CLIS,
GBN, and Consortium [CDR] intended for CLIS and GBN to
join together with Lerner, Rockport, and Somerville in
the present conduct of an enterprise to form a valid
partnership and to share in the profits and losses
therefrom under the terms of the LLC Agreement.
34. At the time of the Exchange Agreement, none
of CLIS, GBN, and Consortium intended for CLIS and GBN
to acquire its interest in the Company solely to
receive a specific return on its investment independent
of the Company’s performance and success.
35. The payments made to CLIS under the * * *
[advisory fee agreement] were not intended to reimburse
either CLIS, GBN, or Consortium for their expenses
associated with acquiring an interest in the Company.
36. The income and loss allocations provisions
and the distribution provisions in the LLC Agreement,
including its amendments, gave both CLIS and GBN a true
economic interest in the Company’s profits and losses
and were not merely artifices to pay CLIS and GBN a
specified return on its interest in the Company.
37. Each of Rockport, Lerner, Somerville, CLIS,
and GBN formed the Company with the intent to develop
and promote the remaining entertainment assets held by
CL following the MGM Sale, the Carolco Notes, and the
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Carolco Stock with a view towards making an economic
profit apart from tax consequences.
42. The Third Amendment was duly executed by the
Company’s Manager so that the Company and each of its
Members are bound by the provisions of the Third
Amendment under applicable local laws.
For the reasons discussed in this opinion, we conclude that
CDR, Generale Bank and CLIS did intend for the banks to exercise
their put rights and to exit SMP as expeditiously as possible,
that Mr. Lerner had this same understanding, and that the
interests of all parties were directed towards the banks’
transferring their built-in losses to the Ackerman group for a
$10 million cash payment. Because the Chamberlain Hrdlicka
opinion is grounded on erroneous factual assumptions that Mr.
Lerner knew were untrue, we cannot agree that he reasonably
relied on that opinion in preparing SMP’s and Corona’s 1997 and
1998 partnership tax returns.
The last section of the opinion, which contains Chamberlain
Hrdlicka’s legal conclusions, is two pages long. Chamberlain
Hrdlicka concludes that SMP had a $551,600,856 basis in the SMHC
stock, a $79,912,955.34 basis in the $79 million receivable that
CLIS contributed, and a $975,494,909.84 basis in the $974 million
in receivables that Generale Bank contributed. Chamberlain
Hrdlicka reaches these conclusions without any legal analysis or
citation to the Code, the regulations, or caselaw. Instead,
Chamberlain Hrdlicka states simply: “In reaching our opinions,
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we have considered the business and tax purposes for the
Transactions and have analyzed the Tax Laws (as defined below) as
they relate to the facts and circumstances described in this
letter associated with the Transactions in the manner described
in, and required by, Treas. Reg. §§ 1.6662-4(d)(3) and 1.6664-
4(c).” It defines the term “Tax Laws” as “existing provisions of
the Code, the Treasury Department regulations promulgated
thereunder (final, temporary, and proposed), published revenue
rulings and revenue procedures of the Internal Revenue Service *
* *, reports, and statements of congressional committees and
members, and judicial decisions”. Chamberlain Hrdlicka, however,
does not cite the particular items that it purportedly relied
upon. In fact the only citation in the opinion is to section
1.6662-4(d)(3) and 1.6664-4(c), Income Tax Regs., relating to
substantial authority and reasonable cause. Under these
circumstances, we cannot agree that the Chamberlain Hrdlicka
opinion provides any basis for reliance.
Chamberlain Hrdlicka’s opinion concludes by stating:
A number of issues raised by the matters addressed
in this letter, including matters upon which we have
stated our opinions, are complex and have not been
definitively resolved by the Tax Laws. The opinions
that we state in this letter are based upon our
interpretation of existing law and our belief regarding
what a court should conclude if presented with the
relevant issues properly framed. But we can give no
assurances that our interpretations will prevail if the
issues become the subject of judicial or administrative
proceedings. Realizing the tax consequences set forth
in this letter is subject to the risk that the IRS may
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challenge the tax treatment and that a court could
sustain the challenge. Because the Company would bear
the burden of proof required to support items
challenged by the IRS, in rendering our opinions, we
have assumed that the Company, or other appropriate
taxpayer, will undertake the effort and expense to
present fully the case in support of any matter that
the IRS challenges.
We conclude that Mr. Lerner did not reasonably rely on the
Chamberlain Hrdlicka opinion in preparing SMP’s and Corona’s 1997
and 1998 partnership tax returns.213
8. Conclusion
We conclude that the advice that petitioner claims he relied
upon in preparing SMP’s and Corona’s 1997 and 1998 partnership
tax returns does not satisfy the reasonable cause exception and
does not provide a basis for avoiding the accuracy-related
penalties.
213
The Chamberlain Hrdlicka opinion was issued after Mr.
Lerner prepared and filed SMP’s and Corona’s 1997 partnership tax
returns. Mr. Lerner claims, however, that he had discussions
with Mr. Valentino prior to filing the 1997 returns and that Mr.
Valentino’s oral advice closely tracked the written advice, as
well as Mr. Levinton’s conclusions. Mr. Lerner did not call Mr.
Valentino as a witness, and, with the exception of Mr. Lerner’s
self-serving testimony, we have no basis for determining the true
nature of Mr. Lerner’s discussions with Mr. Valentino or any way
to gauge his reliance on any advice Mr. Valentino might have
given. In any event, if the advice was consistent with the
Chamberlain Hrdlicka opinion letter, Mr. Lerner could not have
reasonably relied upon it.
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XII. Evidentiary Matters
A. Daubert Issues
The parties have submitted expert opinions (in addition to
those previously discussed) that they assert are relevant.
Petitioner submitted the expert report and testimony of Todd
Crawford of Deloitte & Touche, LLP, Houston, Texas. Respondent
submitted the expert reports and testimonies of Louise Nemschoff
and Alan C. Shapiro. Before trial, the parties filed respective
motions in limine to the expert opinions of Mr. Crawford, Ms.
Nemschoff, and Mr. Shapiro. At trial, we conditionally admitted
the expert reports and testimonies of these witnesses and took
the parties’ objections under advisement, affording the parties
an opportunity to brief their objections in relation to the
issues in these cases.
Under rule 702 of the Federal Rules of Evidence:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form
of an opinion or otherwise, if (1) the testimony is
based on sufficient facts or data, (2) the testimony is
the product of reliable principles and methods, and (3)
the witness has applied the principles and methods
reliably to the facts of the case.
In Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597
(1993), the U.S. Supreme Court held that, under the Federal Rules
of Evidence, the trial judge must ensure as a precondition to
admissibility that any and all scientific testimony rests on a
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reliable foundation and is relevant. In Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 149 (1999), the Supreme Court extended
this requirement to all expert matters described in Rule 702,
Fed. R. Evid.214 Under Daubert and Kumho Tire Co., a trial court
bears a “special gatekeeping obligation” to ensure that any and
all expert testimony is relevant and reliable. Caracci v.
Commissioner, 118 T.C. 379, 393 (2002). In exercising this
function, trial judges have “considerable leeway in deciding in a
particular case how to go about determining whether particular
expert testimony is reliable.” Kumho Tire Co. v. Carmichael,
supra at 152; see also Haarhuis v. Kunnan Enters., Ltd., 177 F.3d
1007, 1014-1015 (D.C. Cir. 1999).
1. Mr. Crawford
Mr. Crawford is a certified public accountant and a lead tax
services partner at Deloitte & Touche. He has 20 years’ tax
experience relating to acquisitions, mergers, reorganizations,
and other complex corporate/entity transactions. From 1990 to
2002, Mr. Crawford served as a member of Arthur Andersen’s
National Mergers and Acquisitions and Subchapter C Team.
214
Although Daubert and Kumho Tire Co. provide a hurdle for
the admissibility of expert testimony, the Federal Rules of
Evidence continue to provide a liberal standard for the
admissibility of expert testimony. See Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 588 (1993); United States v.
Dukagjini, 326 F.3d 45, 57 (2d Cir. 2003).
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Mr. Crawford’s expert report addresses two questions: (1)
Whether unused NOLs of a target company are taken into account in
determining its value to a hypothetical willing buyer and
hypothetical willing seller; and (2) whether unused NOLs of SMHC
(totaling $260,098,293) had potential value to that company and
the amount of that value as of December 11, 1996. Mr. Crawford
concluded that based on his research and experience: (1) Unused
NOLs of a target company are taken into account in determining
the value of a target to an acquirer; and (2) NOLs of SMHC would
have had value to a hypothetical willing buyer and hypothetical
willing seller of that company prior to the transactions that
occurred on December 11, 1996. He concluded that the NOLs in
SMHC would have had a value in the range of $620,000 to
$1,245,000. In arriving at this range, Mr. Crawford first
propounded a reasonable, projected utilization of NOLs by a
hypothetical acquirer; second, he applied a present value
analysis to the projected utilization of NOLs back to December
11, 1996, using a rate (10 percent) that estimated the weighted
average cost of capital during that period; and third, he applied
a 98- to 99-percent risk-related discount to that result.215
215
In calculating the present value of the NOLs, Mr.
Crawford discounted one year too many, causing his calculations
to be off by one year. Although this error would serve to
increase the range of values that Mr. Crawford determined, it
leads us to question the reliability of his valuation as a whole.
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At trial, respondent essentially conceded that NOLs might
have some potential, but speculative, value to an acquirer if the
acquisition were properly structured within the strictures of
section 382. We extrapolate from respondent’s concession that
the NOLs in SMHC likewise might have had some potential, but
speculative, value to an acquirer. The parties dispute, however,
Mr. Crawford’s valuation of the NOLs in SMHC.
In making his valuation conclusions, Mr. Crawford relied
exclusively upon his experience in corporate NOL transactions.
Mr. Crawford, however, has no specific background in valuation;
nothing in his testimony or report indicates that he is qualified
to value the NOLs in SMHC. Indeed, it appears that critical
elements of Mr. Crawford’s valuation, including his income
projections, his weighted average cost of capital, and his
discount rate, were lifted from Mr. Wagner’s expert report.
Further, although Mr. Crawford testified that his experience in
corporate NOL transactions involves valuations of NOLs, he failed
to explain whether he personally makes or reviews, or has any
substantial role in making or reviewing, those valuations. He
also failed to correlate his valuation methodology to his
purported experience in valuing NOLs and to explain whether he
makes, reviews, or relies upon valuations similar to the
valuation in his expert report. Although Mr. Crawford states
that he selected a 98- to 99-percent risk-related discount rate
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“in the interest of determining a conservative value”, he
admitted that his selection was inherently subjective and that
the value he arrived at reflects a speculative value.
Ultimately, we are led to the conclusion that Mr. Crawford’s
expert testimony lacks a sufficiently reliable basis upon which
to reach an opinion as to the value of the NOLs in SMHC. See
United States v. Fredette, 315 F.3d 1235, 1240 (10th Cir. 2003)
(“a witness ‘relying solely or primarily on experience’ must
‘explain how that experience leads to the conclusion reached, why
that experience is a sufficient basis for the opinion, and how
that experience is reliably applied to the facts.’” (quoting Fed.
R. Evid. 702, Adv. Comm. Note.)). Accordingly, we exclude Mr.
Crawford’s expert report and testimony.216
2. Ms. Nemschoff
Ms. Nemschoff is an entertainment attorney who has
represented a wide variety of institutional and individual
clients in both domestic and international transactions in film,
television, the visual arts, publishing, music, and multimedia.
She has been in practice for more than 25 years. She has
published a number of articles and spoken extensively in the U.S.
216
Even if we were to admit Mr. Crawford’s report and
testimony into evidence, his valuation analysis would not
materially affect our decisions in these cases. Given the
speculative nature of Mr. Crawford’s conclusions and the
complexity of making any predetermination of whether the NOLs
might survive the gauntlet of sec. 382, we would give little
weight to his valuation analysis.
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and Europe on various aspects of copyright, trademark, and
entertainment law, including the transfer of film rights and
chain-of-title issues.217 She serves on the arbitration panel and
the legal committee of the International Film & Television
Alliance (IFTA), formerly known as the American Film Marketing
Association.218
a. Ms. Nemschoff’s Expert Opinion
Ms. Nemschoff submitted her report and testimony on the
following matters:
(1) the contractual terms, legal documentation of
ownership and pre-closing research that would be
reasonably and customarily expected in connection with
the acquisition of rights in motion pictures;
(2) the steps customarily taken by a transferee of
film rights to protect its ownership in the acquired
rights;
(3) any deficiencies and discrepancies in the
legal documentation obtained and research undertaken by
SMP in connection with its acquisition of the “U.S.
Video Film Rights” in 65 film titles and 26 development
projects purportedly owned by SMHC, including
discrepancies in the ownership of rights as disclosed
by U.S. Copyright Office records; and
(4) any deficiencies and discrepancies in the
steps taken by SMP to protect its rights in these
assets.
217
At one time, Ms. Nemschoff served as general counsel and
vice president of business affairs at Concorde-New Horizons
Corp., a motion picture production and distribution company.
218
The legal committee of the International Film &
Television Alliance addresses the transfer of film rights, chain-
of-title issues, and copyright issues.
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Ms. Nemschoff concluded that the steps taken by SMP and SMHC
contrast sharply with those that would normally be expected from
a party undertaking such a transaction in a number of key areas,
including identification of the film titles and the rights being
acquired, warranties and representations regarding ownership,
chain of title, delivery materials, and recordation of the
transaction. She opined that the acquisition was conducted in a
manner that strongly suggests a lack of concern on SMP’s part
with respect to its ownership of the film titles or its ability
to exploit them. Instead, she observed that SMP apparently
adopted the relatively risky strategy of acquiring the film
titles with only minimal information as to the film titles
themselves, the rights being acquired, and the availability of
the physical materials necessary for their exploitation. Ms.
Nemschoff’s conclusions were based primarily, if not solely, on
her experience as an entertainment attorney.
b. Petitioner’s Arguments
In his motion in limine and on brief, petitioner argues that
we should exclude Ms. Nemschoff’s expert report and testimony
under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993),
and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1993). First,
petitioner argues that Ms. Nemschoff’s report is unreliable
because it broadly asserts what is typical and customary with
respect to film-transfer transactions but fails to support that
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assertion with a survey, proper sampling of the industry, or any
other type of study among companies acquiring rights, or with any
outside reliable source such as a treatise, contract form book,
practice guide, or material she may have published. Relying upon
Daubert and Kumho Tire, petitioner contends that Ms. Nemschoff’s
legal practice and experience are insufficient to establish the
requisite degree of reliability under rule 702, Federal Rules of
Evidence. Petitioner contends that there is an insurmountable
analytical gap between Ms. Nemschoff’s opinions as to what are
typical and customary steps in transferring film rights and her
conclusion that a failure to take such steps in the transaction
with CDR indicates SMP’s lack of interest in acquiring and
exploiting film rights. Finally, petitioner claims that certain
flaws in Ms. Nemschoff’s legal practice and experience undermine
her ability to comment on what is typical and customary in
transfers of film rights. Notably, petitioner contends that Ms.
Nemschoff has not identified how many times she has drafted or
reviewed a contract or worked on matters involving films or film
libraries.
c. Court’s Analysis
Personal experience and knowledge can be a reliable and
valid basis for expert testimony in many cases. See Kumho Tire
Co. v. Carmichael, supra at 150; United States v. Fredette, supra
at 1239-1240; Groobert v. President of Georgetown Coll., 219 F.
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Supp. 2d 1, 7 (D.D.C. 2002). Ms. Nemschoff has more than 25
years of relevant legal experience in the entertainment industry.
As an entertainment attorney, Ms. Nemschoff deals primarily with
film and television rights. She has been involved in the sale
and purchase of media libraries (including individual media
rights), in the licensing of media rights, and in copyright
registration, renewal, and restoration of media rights. She has
negotiated, drafted, and reviewed a large number of distribution
agreements. As a member of IFTA’s legal committee, Ms. Nemschoff
has participated in developing and updating model agreements or
form agreements for distribution. She has also given advice on
chain-of-title issues to filmmakers and others seeking production
financing. She has mediated disputes involving media rights and,
in that context, has seen a number of single-picture and multi-
picture distribution agreements and the kinds of disputes that
arise from those agreements. Ms. Nemschoff has been involved in
qualifying distributors for errors and omissions insurance, which
requires opining that the chain of title on a film is clear and
that there have been no violations of copyrights or defamation
problems. In some cases, this process required creating
agreements to establish the chain of title for a film.
We conclude that Ms. Nemschoff’s experience in the
entertainment industry provides a reliable basis for commenting
on what is typical and customary in the transfer of film rights
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and for analyzing the deficiencies and discrepancies in the
transfer of the EBD film library from CLIS to SMHC. With respect
to petitioner’s specific concerns regarding Ms. Nemschoff’s
experience in drafting contracts and working on film or film
library transfers, we believe those concerns go more to the
weight to which her opinion is entitled than to its admissibility
under Daubert v. Merrell Dow Pharms., Inc., supra, and Kumho Tire
Co. v. Carmichael, supra.219
Although we conclude that Ms. Nemschoff’s opinion is
admissible into evidence, we do not need to rely on her opinion
to reach our conclusions in these cases. For the reasons
discussed in more detail above, we find ample evidence in the
record to show that the Ackerman group’s investigation of SMHC’s
219
In preparing her report, Ms. Nemschoff retained the
services of the law offices of Dennis Angel to search the records
of the U.S. Copyright Office with respect to the film titles in
the EBD film library. Ms. Nemschoff represents that it is
customary for entertainment lawyers to rely on copyright searches
and reports by professionals such as Mr. Angel and his staff and
that she has been retaining his services and relying on his
copyright searches and reports for at least 15 years.
Under Fed. R. Evid. 702 and 703, experts are permitted to
rely on evidence outside the trial record, which may include
hearsay that is otherwise inadmissible. RLC Indus. Co. & Subs.
v. Commissioner, 98 T.C. 457, 499 (1992), affd. 58 F.3d 413 (9th
Cir. 1995); H Group Holding, Inc. v. Commissioner, T.C. Memo.
1999-334. The information that Mr. Angel relayed to Ms.
Nemschoff is admitted to understand or explain the basis of her
expert opinion; however, we do not rely on that information or
consider it for the truth of the matters asserted therein. See
Engebretsen v. Fairchild Aircraft, Corp., 21 F.3d 721, 728-729
(6th Cir. 1994); H Group Holding, Inc. v. Commissioner, supra.
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film rights before the CDR transaction was not only deficient but
essentially nonexistent. We reach our conclusions primarily on
the basis of that evidence. We refer to Ms. Nemschoff’s report
and testimony only as additional support for our conclusions.
3. Mr. Shapiro
Mr. Shapiro has a Ph.D. in economics and is a professor of
banking and finance at the Marshall School of Business,
University of Southern California. Mr. Shapiro has held a number
of professorial positions and has taught banking, finance, and
economics at a number of institutions in the U.S. and abroad.
Mr. Shapiro has authored numerous articles and books on banking,
finance, and economics, and he has testified in a number of court
proceedings.
a. Mr. Shapiro’s Expert Opinion220
Mr. Shapiro submitted his report and testimony on the
following matters:
(i) the value of the SMHC stock that CLIS
contributed to SMP at the time it was contributed;
(ii) the value of the $79,912,955 of indebtedness
that MGM Group Holdings owed to CLIS and the
$974,296,600 of indebtedness that MGM Group Holdings
owed to Generale Bank at the time those items were
contributed to SMP; and
220
Mr. Shapiro also submitted a rebuttal report to Mr.
Crawford’s expert opinion, which we received into evidence
without objection.
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(iii) the value of SMHC’s interest in the Carolco
securities at the time the SMHC stock was contributed
to SMP.
Mr. Shapiro concluded:
(i) the stock that CLIS contributed to SMP had no
value at the time it was contributed;
(ii) the $79,912,955 of indebtedness that SMHC
owed to CLIS and the $974,296,600 of indebtedness that
SMHC owed to Generale Bank had no value at the time
those items were contributed to SMP; and
(iii) the Carolco securities that SMHC owned had
no value at the time the SMHC stock was contributed to
SMP.
In reaching his conclusions, Mr. Shapiro conducted an economic
analysis of the CDR transaction and the events leading up to that
transaction.
Mr. Shapiro first observed that as of October 10, 1996, the
only asset in SMHC was the Carolco securities, which he
determined were worthless.221 In Mr. Shapiro’s opinion, because
there was no value in any underlying assets in SMHC, the SMHC
stock and the approximately $1 billion in indebtedness were also
worthless as of October 10, 1996.
221
Relying on the information contained in the bankruptcy
plans of reorganization, including the various scenarios
discussed in the disclosure statements, Mr. Shapiro observed that
the total estimated amount of asserted claims that had a higher
priority than SMHC’s Carolco securities was $557,482,968. Thus,
for SMHC to receive anything, the net proceeds from Carolco’s
liquidation would have to exceed $557,482,968. The net proceeds
were projected to be far less, however--between $66,491,040 and
$93,027,900. On the basis of this and other information, Mr.
Shapiro concluded that there was no reasonable expectation of
receiving anything on the Carolco securities as of Dec. 11, 1996.
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Second, Mr. Shapiro opined that it would not be rational for
CLIS to contribute the EBD film library to SMHC in its capacity
as an equity holder of SMHC because: (1) The face amount of
SMHC’s debt was greater than the value of its assets as of
December 10, 1996; and (2) SMHC’s creditors with priority claims
would capture the value of any contribution.222 Moreover,
although debt holders may generally have an incentive to make
additional investments to a company in proportion to their
claims, he observed that it would not be rational for one of the
debt holders on its own to undertake an investment that would
benefit it in an amount less than the cost of the investment.
Thus, because Generale Bank held a more significant debt claim in
SMHC, he opined that it would not be rational for CLIS to
contribute the EBD film library in its capacity as a debt holder
of SMHC. Mr. Shapiro concluded that “the true economic reality
of this transaction is that CLIS contributed the Film Rights to
SMP and not to SMHC.”223
222
Mr. Shapiro describes this phenomenon as the
“underinvestment problem”; i.e., debtholders will appropriate
value created by a new equity infusion, and, therefore, such
equity infusions do not occur. Mr. Shapiro assumed that Generale
Bank and CLIS were unrelated for purposes of his analysis.
223
Mr. Shapiro also observed that the $5 million advisory
fee exactly equaled SMP’s “cost basis” in the EBD film library.
On this basis, without elaboration, Mr. Shapiro concluded: “It
appears that CLIS was paid separately for its Film Rights in the
guise of an advisory fee, instead of being paid for the Film
Rights as part of the price paid for SMHC’s debt.”
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Third, because the Carolco securities had no value and the
contribution of film rights was in economic reality to SMP and
not SMHC, Mr. Shapiro concluded that there were no assets of
value supporting the contributed debts, and, therefore, those
debts were worthless.
b. Court’s Analysis
Under Rule 702, Fed. R. Evid., expert testimony is
admissible where it assists the Court to understand the evidence
or to determine a fact in issue. ASAT, Inc. v. Commissioner, 108
T.C. 147, 168 (1997). Expert testimony that expresses a legal
conclusion does not assist the Court and is not admissible.
Alumax, Inc. v. Commissioner, 109 T.C. 133, 171 (1997), affd. 165
F.3d 822 (11th Cir. 1999); Hosp. Corp. of Am. & Subs. v.
Commissioner, 109 T.C. 21, 59 (1997); FPL Group, Inc. & Subs. v.
Commissioner, T.C. Memo. 2002-92. Moreover, an expert who is
merely an advocate of a party’s position does not assist the
Court to understand the evidence or to determine a fact in issue.
Sunoco, Inc. & Subs. v. Commissioner, 118 T.C. 181, 183 (2002);
Snap-Drape, Inc. v. Commissioner, 105 T.C. 16, 20 (1995), affd.
98 F.3d 194 (5th Cir. 1996). Determining whether expert
testimony is helpful is a matter within the sound discretion of
the Court. See Laureys v. Commissioner, 92 T.C. 101, 127 (1989).
After reviewing Mr. Shapiro’s report and testimony, we are not
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persuaded that it is helpful to the Court in understanding the
evidence or determining a fact in issue.
In the first instance, we question the relevance and
reliability of Mr. Shapiro’s “economic reality” analysis in
evaluating CLIS’s contribution of film rights to SMHC. Mr.
Shapiro concluded, with little elaboration, that CLIS contributed
the film rights to SMP instead of SMHC. Because the film rights
were contributed to SMP, Mr. Shapiro concluded that SMHC had no
value in those assets as of December 11, 1996. In reaching these
conclusions, Mr. Shapiro superimposes his view of “economic
reality” to a level that wholly ignores the legal effect (apart
from tax considerations) of CLIS’s contribution to SMHC and
SMHC’s existence as a separate corporate entity from SMP. SMHC,
as opposed to SMP, was the legal owner of whatever film rights
CLIS contributed to it and continued to hold those rights until
its merger with Troma. Presumably, since the film rights resided
in SMHC after the CLIS contribution, debtholders would be
entitled to whatever value those film rights had, if any. Mr.
Shapiro concludes, however, that because the film rights were in
SMP, SMHC had no assets of value and therefore the receivables
from Generale Bank and CLIS were worthless. Under the
circumstances, Mr. Shapiro’s views of “economic reality” are
largely academic, disregard elements of CLIS’s contribution, and
cannot form the basis for determining the facts in issue. Those
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views are not helpful to the Court in understanding any evidence
or determining a fact in issue.224
In Mr. Shapiro’s expert report, he indicates that he was
asked to provide an expert opinion on the value of SMHC stock,
the value of the receivables that Generale Bank and CLIS
contributed to SMP, and the value of SMHC’s interest in the
Carolco securities. After reviewing Mr. Shapiro’s report and
testimony, however, we find that Mr. Shapiro has gone well beyond
the scope of his engagement, reaching conclusions on the
substance over form issues that this Court must decide.
In his expert report, Mr. Shapiro analyzed the possibility
that the $5 million put purchase price and the $5 million
advisory fee were paid as arm’s-length consideration for Generale
Bank’s and CLIS’s receivables. In scattershot fashion, he
concludes, without any elaboration, that SMP paid the $5 million
advisory fee for the EBD film rights and not the receivables;
that there is a question whether the $5 million put purchase
price and $5 million advisory fee were paid as consideration for
Generale Bank’s and CLIS’s contributions of the receivables; but
that “Considering that SMP received the Film Rights, as well as
224
Although respondent seeks to capitalize on certain
gratuitous statements in Mr. Shapiro’s expert report and
testimony, we do not construe respondent’s position to
contemplate CLIS’s contribution of the EBD film rights to SMP.
Inasmuch as CLIS’s contribution of the film rights to SMHC is not
a fact in issue, we question the relevance of Mr. Shapiro’s
economic analysis.
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tax benefits from the transaction with a potential value in the
hundreds of million of dollars, it is very unlikely that the
$10,000,000 figure represents the fair market value of the debt.”
Mr. Shapiro’s expert report provides no basis for reaching these
conclusions other than speculation. He did not identify the tax
benefits that he alluded to and, indeed, testified that he based
his conclusions on a discussion with respondent’s counsel
regarding SMP’s “trying to take a writeoff on this debt”.
Similar to other portions of Mr. Shapiro’s report, these
statements have the distinct quality of advocacy.
For the reasons stated above, we conclude that Mr. Shapiro’s
expert report and testimony are not admissible into evidence. We
shall grant petitioner’s motion in limine as it relates to that
expert report and testimony.
B. Mr. Jouannet’s Response
At trial, we admitted a letter from Mr. Lerner dated
November 21, 1997, requesting a confirmation from Mr. Jouannet:
In order to respond to a question asked by our
auditors, we would appreciate receiving a letter from
you confirming that, to the best of your recollection:
(i) when GB and CLIS entered into the Santa Monica
Pictures LLC agreement, they intended at the time to be
partners with Rockport Capital Inc. and (ii) their
decision to dispose of their interests was made
subsequent to the date of that agreement (December 11,
1996). I recall that the interests were transferred at
the end of 1996.
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In connection with that letter, petitioner offered a second
letter, which petitioner alleges was Mr. Jouannet’s response to
Mr. Lerner. The exhibit reads:
Pursuant to your letter of November 21, 1997,
relating to the transactions that I negotiated with you
during the last quarter of 1996, my recollection is as
follows:
1/ Generale Bank Nederland NV (GB) and Credit
Lyonnais International Services SA (CLIS) under
the instructions of their affiliate Consortium de
Realisation (CDR) entered into an Exchange and
Contribution Agreement with Rockport Capital
Incorporated whereby they contributed stock of
Santa Monica Holding Corp (SMH) and indebtedness
owing by SMH to GB and CLIS in exchange for
preferred interests in Santa Monica Pictures LLC.
That agreement was passed on December 11, 1996.
2/ Subsequent to entering into the LLC agreement CDR
(and consequently GB and CLIS) opted, as I
understand it for reasons in relation to its 1996
year end accounts, to dispose of their preferred
interests in the LLC at the end of their financial
year pursuant to the right granted to them by a
Letter Agreement entered with Rockport
simultaneously with the Exchange and Contribution
Agreement.
To the best of my recollection notice of such
decision to assign, was given to Rockport in the
second half of December 1996 and the transfer
became effective on December 31st 1996.
Respondent objected to this response on hearsay grounds. The
Court sustained respondent’s objection. On brief, petitioner
seeks to have the Court reconsider its ruling.
Because Mr. Jouannet is deceased and unavailable to
testify, petitioner offered this exhibit under rule 807, Federal
Rules of Evidence, as an exception to the hearsay rule. Rule
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807, Federal Rules of Evidence, provides that a statement not
specifically covered by the hearsay exceptions of rules 803 or
804, Federal Rules of Evidence, but having equivalent
circumstantial guarantees of trustworthiness, is not excluded by
the hearsay rule, if the Court determines: (a) The statement is
offered as evidence of a material fact; (b) the statement is more
probative on the point for which it is offered than any other
evidence which the proponent can procure through reasonable
efforts; and (c) the general purposes of the Federal Rules of
Evidence and the interests of justice will best be served by
admission of the statement into evidence.225 To ensure that this
“residual exception” to the hearsay rule does not emasculate the
body of law underlying the Federal Rules of Evidence, it is to be
used very rarely and only in exceptional circumstances.
Goldsmith v. Commissioner, 86 T.C. 1134, 1140 (1986); Gaw v.
Commissioner, T.C. Memo. 1995-531.
We are not persuaded that Mr. Jouannet’s response to Mr.
Lerner’s letter has circumstantial guarantees of trustworthiness
equivalent to those in the other hearsay exceptions. Mr.
Jouannet’s response was made to Mr. Lerner’s inquiry regarding
CDR’s intentions in its transaction with the Ackerman group. The
response appears to have been written as an accommodation to Mr.
225
Petitioner, as the proponent of this evidence, must show
that each of these requirements is met. See Little v.
Commissioner, T.C. Memo. 1996-270.
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Lerner; there is no guarantee that the accommodation did not
extend to the substance of the response. We are not convinced
that Mr. Jouannet gave his response as a “disinterested” party.
Moreover, Mr. Jouannet’s response is not contemporaneous with
CDR’s transaction with the Ackerman group.
We also are not persuaded that Mr. Jouannet’s response is
more probative on the point for which it is offered than any
other evidence that petitioner could have procured through
reasonable efforts.226 Although the record reflects that Mr.
Jouannet was the principal negotiator on the CDR side of the
transaction, we are not convinced that other individuals at CDR,
Generale Bank, or CLIS could not have testified regarding the
intentions of the banks.
Finally, petitioner points to the fact that Mr. Jouannet is
deceased and is unavailable to testify as a basis for admitting
the response. We are not persuaded that rule 807 of the Federal
Rules of Evidence contemplates admitting hearsay evidence solely
on the basis that the declarant is deceased. See Estate of
Temple v. Commissioner, 65 T.C. 776 (1976). We are not persuaded
that the general purposes of the Federal Rules of Evidence and
226
The requirement that “the statement is more probative on
the point for which it is offered than any other evidence which
the proponent can procure through reasonable efforts” requires a
consideration of two factors: (1) The availability of other
evidence on a particular point; and (2) whether such other
evidence can be procured through reasonable efforts. Goldsmith
v. Commissioner, 86 T.C. 1134, 1141 (1986).
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the interests of justice will best be served by admitting Mr.
Jouannet’s response.227
In light of the foregoing,
An appropriate order will
be issued granting respondent’s
motion in limine to exclude the
expert report and testimony of Todd
Crawford, denying petitioner’s
motion in limine to exclude the
expert report and testimony of
Louise Nemschoff, and granting
petitioner’s motion in limine to
exclude the expert report and
testimony of Alan C. Shapiro, at
docket No. 6163-03 a decision will
be entered for respondent and at
docket No. 6164-03 an appropriate
order of dismissal will be entered.
227
Even if Mr. Jouannet’s response were admitted into
evidence, it would not change our decisions in these cases. For
the reasons discussed above, we would attach little weight to Mr.
Jouannet’s response, which is filled with equivocations that beg
the question posed to him. We are not persuaded that Mr.
Jouannet was adverse to petitioner’s interests. Moreover, the
response itself is contradicted by the salient testimony of Mr.
Geary, who acted as CDR’s counsel in the transaction with the
Ackerman group.