T.C. Memo. 2009-288
UNITED STATES TAX COURT
PALM CANYON X INVESTMENTS, LLC, AH INVESTMENT HOLDINGS, INC., TAX
MATTERS PARTNER, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 5610-06. Filed December 15, 2009.
PC, a single-member LLC owned by AHI, entered into
offsetting market-linked deposit contracts with SG.
Each contract provided for potential premium interest
on the deposit; the terms of the potential premium
interest in each contract constituted a European-style
foreign currency digital option. Shortly thereafter,
CFA became a member in PC. As a result, PC was
classified as a partnership for tax purposes, and the
offsetting MLD options were treated as contributions to
the newly formed partnership. AHI claimed a basis in
its PC partnership interest that included the premium
it owed for the long MLD option, but AHI did not reduce
its partnership basis to account for any obligation
under the short MLD option under sec. 752(b), I.R.C.
Less than 2 months later, AHI acquired CFA’s PC
membership interest and again became PC’s only member,
causing liquidation of the PC partnership. Under sec.
732(b), I.R.C., in the only asset deemed distributed by
PC, a foreign currency position in Canadian dollars,
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AHI claimed a basis that equaled AHI’s basis in its PC
interest, minus cash it received, as a deemed
liquidating distribution. PC then sold the Canadian
dollars and claimed a substantial ordinary tax loss. R
issued a notice of final partnership administrative
adjustment in which he determined that PC was a sham
and that the MLD contracts lacked economic substance
and should be disregarded. P petitioned this Court
under sec. 6226(a), I.R.C.
Held: The MLD transaction is disregarded under
the economic substance doctrine.
Held, further, the accuracy-related penalty under
sec. 6662, I.R.C., applies.
Steven R. Mather and Lydia B. Turanchik, for petitioner.
Stephen M. Barnes, William R. Davis, Jr., Dennis M. Kelly,
and David W. Sorensen, for respondent.
CONTENTS
FINDINGS OF FACT............................................... 6
I. Background........................................... 6
II. Notice 2000-44....................................... 8
III. Investigating the MLD Strategy ...................... 9
IV. Executing the MLD Transaction....................... 15
A. Preliminary Steps.............................. 15
B. The MLD Contracts.............................. 17
C. Transactions Following the MLD Contracts ...... 22
D. Termination of the MLD Contracts............... 24
E. Activities Following the Termination of the
MLD Contracts.................................. 25
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F. Pryor Cashman Opinion.......................... 28
G. Palm Canyon’s Trading Activity After 2001...... 29
V. Relevant Tax Reporting for 2001..................... 30
A. Palm Canyon’s Return........................... 30
B. Thighmaster’s Return........................... 31
C. The Hamels’ Return............................. 33
VI. FPAA................................................ 34
OPINION....................................................... 35
I. Jurisdiction Under TEFRA............................ 35
II. Statute of Limitations on Assessments............... 37
III. Burden of Proof..................................... 39
IV. Economic Substance of the MLD Transaction.......... 40
A. Definition of a “Liability” Under Section 752.. 43
B. Section 1.752-6, Income Tax Regs............... 47
C. Economic Substance Doctrine.................... 50
1. Subjective Prong.......................... 55
a. The Hamel Companies’ Lack of a
Current or Foreseeable Need To Hedge
Foreign Currencies................... 56
b. Lack of Investigation Into the
Foreign Currency Aspects of the MLD
Contracts and the Participating
Parties.............................. 58
c. Lack of Rational Economic Behavior in
Pricing the MLD Contracts............ 59
d. CF Advisors’ Membership in Palm Canyon
Solely To Facilitate the Tax Benefit
Contemplated by the MLD Transaction.. 62
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e. The MLD Strategy as a Tax Shelter To
Offset Mr. Hamel’s Taxable Income.... 67
2. Objective Prong........................... 68
a. Palm Canyon’s Lack of Realistic
Chance of Hitting the Sweet Spot..... 69
b. Nullification of Any Potential Profit
by Palm Canyon’s MLD Transaction
Fees................................. 71
D. Conclusion..................................... 74
V. Section 6662 Accuracy-Related Penalty............... 75
A. Preliminary Matters............................ 76
1. Jurisdiction.............................. 76
2. Burden of Production...................... 78
B. Gross Valuation Misstatement................... 79
C. Negligence..................................... 86
D. Substantial Understatement..................... 92
E. Section 6664(c) Reasonable Cause Exception......99
VI. Conclusion......................................... 103
MEMORANDUM FINDINGS OF FACT AND OPINION
MARVEL, Judge: Respondent issued a notice of final
partnership administrative adjustment (FPAA) for 2001 pursuant to
section 6223(a)1 to AH Investment Holdings, Inc. (AHI), the tax
matters partner (TMP) of Palm Canyon X Investments, LLC (Palm
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code (Code) in effect for the taxable year
in issue, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
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Canyon),2 a limited liability company classified as a partnership
for Federal income tax purposes.3 In the FPAA respondent
determined that Palm Canyon was a sham and that offsetting
market-linked deposit4 contracts (MLD contracts) entered into by
Palm Canyon lacked economic substance and should be disregarded
for Federal income tax purposes. Accordingly, respondent made
adjustments to the income, expense, deduction, and distribution
items reported by Palm Canyon on its 2001 Federal income tax
return and imposed an accuracy-related penalty under section
6662. A petition for readjustment of partnership items was filed
by AHI on behalf of Palm Canyon.
The parties tried and briefed the following issues:
(1) Whether Palm Canyon’s MLD contracts lacked economic
substance and should be disregarded for Federal income tax
purposes;
(2) alternatively, whether Palm Canyon should be disregarded
as a sham;
2
Palm Canyon is subject to the unified partnership audit and
litigation procedures of the Tax Equity and Fiscal Responsibility
Act of 1982, Pub. L. 97-248, sec. 402(a), 96 Stat. 648.
3
Palm Canyon’s 2001 partnership tax year began Oct. 19,
2001, and ended Dec. 18, 2001 (Palm Canyon’s 2001 tax year).
4
Hereinafter, we will refer to market-linked deposit(s) as
MLD(s).
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(3) alternatively, whether Palm Canyon’s short MLD contract
is a liability under section 752(a) and (b) or a contingent
liability under section 1.752-6, Income Tax Regs.;
(4) alternatively, whether the MLD contracts should be
treated as a single integrated transaction with a net tax basis
of $55,000 under the substance over form doctrine and section
988; and
(5) whether any underpayment of tax attributable to the
adjustments to partnership items is subject to the section 6662
accuracy-related penalty, as determined at the partnership level.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
The stipulations of the parties are incorporated herein by this
reference. On the date AHI filed its petition as Palm Canyon’s
TMP, Palm Canyon had no principal place of business, as it had
ceased to exist.
I. Background
In 1988 Alan Hamel (Mr. Hamel) and his wife, Suzanne Hamel,5
(collectively the Hamels) began promoting various retail
products, including the well-known “Thighmaster” piece of
exercise equipment. The Hamels enjoyed considerable success with
the Thighmaster, selling millions of units. By 2001 the Hamels’
5
Suzanne Hamel, also known as Suzanne Somers, is an actress
who is featured in advertisements for the “Thighmaster”. The
parties’ stipulations also reflect the spelling “Sommers”.
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retail operation included numerous products besides the
Thighmaster, including other fitness products, jewelry, books,
videos, and various food items. The Hamels’ businesses
manufactured over 1,000 products annually.
The Hamels operated their retail business through a
corporate structure headed by Thighmaster World Corp.
(Thighmaster).6 As of December 31, 2001, Thighmaster was the
parent corporation of seven subsidiary corporations engaged in
various business activities and organized by function and product
sales7 (collectively the Hamel companies). During 2001 Mr. Hamel
was Thighmaster’s sole shareholder.
Through 2001 none of the Hamel companies operated a business
or owned any manufacturing, storage, or sales facilities in a
foreign country. In 2001 the Hamel companies’ international
activities consisted primarily of sales through the Internet.
The Hamel companies also ordered a significant portion of the
materials used to make their products from Asia and had some of
their products manufactured there.
None of the Hamel companies’ businesses had any contracts
due in 2001 or 2002 that required payments in foreign currencies.
6
Mr. Hamel organized Thighmaster in 1995. Sometime after
2001 Thighmaster changed its name to ELO.
7
As of Dec. 31, 2001, six of the seven corporations were
qualified subch. S subsidiary corporations.
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Additionally, Thighmaster had no direct or indirect ownership
interest in any foreign entity or bank account and paid no
foreign taxes.
II. Notice 2000-44
On August 13, 2000, the Internal Revenue Service (IRS)
issued Notice 2000-44, 2000-2 C.B. 255, titled “Tax Avoidance
Using Artificially High Basis”; it was published in the Internal
Revenue Bulletin on September 5, 2000. In Notice 2000-44, supra,
the IRS addressed arrangements that produce noneconomic tax
losses on the disposition of partnership interests and described
two variations of loss-generating transactions. One described
transaction involved purchasing and writing options and
purportedly creating positive basis in a partnership interest by
transferring the options to a partnership. Id., 2000-2 C.B. at
255. In such a transaction, the taxpayer purports to have a
basis in the partnership interest equal to the cost of the
purchased call option, although the net economic outlay and the
value of the partnership interest are nominal or zero. Id. The
taxpayer then claims a tax loss on the disposition of partnership
interest without incurring a corresponding economic loss. Id.
In the notice the IRS stated that losses resulting from the
described transaction did not represent bona fide losses
reflecting actual economic consequences and were not allowable as
deductions for Federal income tax purposes. Id.
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In the notice the IRS also stated that “tax losses from
similar transactions designed to produce noneconomic tax losses
by artificially overstating basis in corporate stock or other
property are not allowable as deductions” and appropriate
penalties might be imposed on participants in these transactions.
Id. The IRS also stated that transactions that were the same as
or substantially similar to the ones described in the notice
could be subject to challenge under section 752, under section
1.701-2, Income Tax Regs., or under other antiabuse rules and
could result in the imposition of a section 6662 accuracy-related
penalty. Id., 2000-2 C.B. at 255-256.
III. Investigating the MLD Strategy
Mr. Hamel’s certified public accountant (C.P.A.), Clifton
Lamb (Mr. Lamb),8 was looking for a means to reduce the Hamels’
tax liability as early as August 2001 when he met with Aaron
Sokol and Steven Fuld of the Skyline Group, a financial services
firm, to discuss “high end tax products for big losses”. In a
telephone conversation on August 17, 2001, Mr. Hamel and Mr. Lamb
discussed foreign markets and foreign currencies. Shortly after
this conversation, Mr. Lamb met with John Ivsan (Mr. Ivsan), a
8
Mr. Lamb had advised Mr. Hamel on business and tax matters
since 1996. Mr. Lamb describes himself as an “outsource CFO” of
the Hamel companies. Mr. Lamb worked as a field agent with the
IRS for approximately 13 years. During 2001 and part of 2002 Mr.
Lamb was a partner in the accounting firm of Miod & Co., LLP
During 2002 he was an owner of Lamb Accountancy Corp.
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tax attorney with Cantley & Sedacca, LLP (Cantley & Sedacca),9 to
discuss foreign currency trading with MLDs (MLD strategy).10 Reg
Wilson (Mr. Wilson), an employee of EPIC Advisors, Inc. (EPIC), a
financial and retirement planning and advisory firm, referred Mr.
Lamb to Cantley & Sedacca.11 Paul Kestenbaum (Mr. Kestenbaum),
an attorney who introduced Mr. Lamb to Mr. Wilson, also attended
the meeting.12
The MLD strategy involved offsetting currency positions that
produced a capital or ordinary tax loss by exploiting the
provisions governing the tax treatment of partners and
partnerships. Mr. Ivsan introduced Cantley & Sedacca to the MLD
strategy around April 2001. During 2001 Cantley & Sedacca, with
9
Cantley & Sedacca was a law firm organized in Georgia. Its
principal place of business was in Dallas, Tex. The firm was
formed on Mar. 7, 2001, and dissolved in late 2002.
10
MLDs are money market instruments issued by financial
institutions whereby an investor deposits money with the
financial institution for a fixed period, and in lieu of all or
part of the interest to be paid on the deposit, the depositor has
the opportunity to earn a higher return than otherwise granted
for a traditional time deposit. The higher return depends on the
market performance of some other asset specified in the MLD
documentation.
11
EPIC received a flat fee of $137,500 from Cantley &
Sedacca for referring Mr. Lamb. Mr. Wilson paid Mr. Lamb
$45,833.43 of this amount.
12
Mr. Wilson also paid $45,833.29 of EPIC’s $137,500
referral fee from Cantley & Sedacca to Mr. Kestenbaum and his law
firm.
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the assistance of Daniel Brooks (Mr. Brooks),13 a former foreign
currency trader at Deutsche Bank AG,14 and Craig Brubaker (Mr.
Brubaker),15 an employee at the Dallas branch of Deutsche Banc
Alex. Brown,16 marketed the MLD strategy to accountants and
financial advisers nationwide and sold it to approximately 150
clients.17 Mr. Brooks knew the MLD strategy was a “tax
advantage” or “tax motivated” transaction.
Mr. Lamb’s initial reaction to the MLD strategy was that the
tax benefit was “too good to be true”. On August 23, 2001, Mr.
Lamb spoke with Mr. Hamel about the MLD strategy. Following the
discussion, Mr. Lamb reviewed a tax opinion by the law firm Bryan
13
Mr. Brooks has an M.B.A. degree and extensive experience
in the financial industry, having worked as a foreign currency
trader for several large banks before starting his own currency
adviser firm, Clarion Capital, in 2001.
14
Deutsche Bank AG is an international bank headquartered in
Germany, with offices in London and the United States. Mr.
Brooks worked at Deutsche Bank AG from 1999 to 2001.
15
Mr. Brubaker met Mr. Brooks during Mr. Brooks’ employment
with Deutsche Bank AG.
16
Deutsche Banc Alex. Brown is a licensed broker-dealer
engaged in the domestic securities brokerage business and is a
division of Deutsche Bank Securities, Inc., a wholly owned
subsidiary of Deutsche Bank AG.
17
The specific origin of the MLD strategy is not clear from
the record. However, Beckett Cantley (Mr. Cantley) of Cantley &
Sedacca testified that when Mr. Ivsan brought the MLD strategy to
Cantley & Sedacca around April 2001, Mr. Brooks and Mr. Brubaker
were held out as the originators of the strategy.
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Cave, LLP (Bryan Cave), dated August 24, 2001, on the MLD
strategy (Bryan Cave opinion).18
On September 11, 2001, Mr. Hamel met with Mr. Lamb and Mr.
Ivsan to discuss a possible transaction based on the MLD
strategy. At the meeting, Mr. Hamel and Mr. Lamb first learned
of Mr. Brooks. Under the proposed structure of the MLD
transaction, Mr. Brooks would serve as a foreign currency
investment adviser on behalf of Mr. Hamel.19
After the meeting Mr. Hamel told Mr. Lamb to continue
investigating a potential MLD transaction and to instruct Kenneth
Barish (Mr. Barish),20 an attorney with the law firm Kajan,
Mather, & Barish, P.C., also to investigate the MLD strategy and
analyze the Bryan Cave opinion. Mr. Lamb contacted Mr. Barish
about the MLD strategy and faxed Mr. Barish notes regarding his
review of a Bryan Cave draft discussion of the section 6662
penalty dated August 24, 2001. Mr. Lamb researched MLDs on the
Internet. Mr. Lamb and Mr. Barish also investigated the
18
Cantley & Sedacca hired Bryan Cave to determine whether a
transaction incorporating MLDs should be registered as a tax
shelter and to evaluate other potential tax issues.
19
Mr. Brooks served as a foreign currency investment adviser
in each of the approximately 150 MLD transactions in which he
participated.
20
Mr. Barish had advised Mr. Hamel on tax matters since the
late 1980s. Mr. Barish worked in the Criminal Tax Division of
the U.S. Department of Justice and the Tax Division of the U.S.
Attorney’s Office for the Central District of California before
entering private practice. Mr. Barish has experience in
litigating tax shelter cases.
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backgrounds of Mr. Ivsan and Mr. Brooks. Mr. Lamb conducted
Internet research on Mr. Brooks and his currency-adviser firm,
Clarion Capital. Mr. Barish confirmed that Mr. Ivsan had
received an LL.M. from New York University. Mr. Barish hired a
private investigator, Alan Wells (Mr. Wells), to conduct a
background check on Mr. Brooks.
On September 12, 2001, Mr. Lamb and Mr. Barish met with Mr.
Ivsan to discuss a potential MLD transaction and to give Mr.
Barish an opportunity to review the Bryan Cave opinion. After
reading the opinion, Mr. Barish was skeptical of the tax benefits
of the MLD strategy.
On or around September 13, 2001, Mr. Hamel instructed Mr.
Lamb to meet with Mr. Brooks to discuss the MLD strategy. Mr.
Lamb exchanged several emails with Mr. Brooks regarding Mr.
Brooks’ background and a potential MLD transaction. On September
20, 2001, Mr. Wells provided Mr. Barish a report regarding
background inquiries on Mr. Brooks. The background check
confirmed various aspects of Mr. Brooks’ identity. Following the
receipt of Mr. Wells’ report, Mr. Lamb sought to obtain a credit
report on Mr. Brooks. In an email to Mr. Brooks, Mr. Lamb stated
that good credit was an indication of business acumen and that
the Hamel companies typically examined an individual’s credit
before going into business with that person. However, Mr. Brooks
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did not deem his credit relevant and failed to provide the
necessary credit waiver.
On September 26, 2001, Mr. Lamb met with Mr. Brooks to
evaluate whether Mr. Brooks was trustworthy. Mr. Lamb also met
with Marc Kushner (Mr. Kushner), a tax attorney with the law firm
Pryor, Cashman, Sherman & Flynn, LLP (Pryor Cashman). Cantley &
Sedacca referred Mr. Hamel to Pryor Cashman. Mr. Ivsan and Mr.
Barish participated by telephone in the meeting with Mr. Kushner.
Mr. Ivsan also gave Mr. Barish and Mr. Lamb a copy of a
discussion of the section 6662 penalty contained in a Pryor
Cashman draft tax opinion on the MLD strategy.
Following the meetings with Mr. Brooks and Mr. Kushner, Mr.
Lamb recommended that Mr. Hamel proceed with the proposed MLD
transaction. Mr. Barish noted that the MLD strategy represented
an “aggressive tax opinion” that worked “from a technical
standpoint”, and he recommended creating a paper trail
memorializing discussions concerning offshore expansion and
currency transactions before executing the MLD strategy. On
October 4, 2001, Thighmaster held a management meeting for which
Herb Schmidt, Thighmaster’s chief financial officer (CFO) and
director of operations, prepared a memorandum regarding “Business
Opportunity/Business Plan” and Jim England, Thighmaster’s
president, prepared a memorandum regarding “International
Marketing”. The memoranda recommended expanding the Hamel
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companies’ business operations into foreign markets and outlined
potential strategies.21 Around this time, Mr. Hamel decided to
proceed with executing the MLD transaction.
IV. Executing the MLD Transaction
A. Preliminary Steps
On October 9, 2001, Mr. Hamel and Cantley & Sedacca executed
an agreement for legal services. That same day, Mr. Lamb, as
trustee of the Galway Trust,22 made a $325,000 wire transfer from
the Galway Trust’s account to Cantley & Sedacca for services
related to the MLD strategy that were rendered by various
parties.23
Sometime before October 9, 2001, Cantley & Sedacca sent Mr.
Lamb documents regarding the MLD transaction for Mr. Hamel to
sign and return to the firm. Those documents related to and
purported to implement the MLD transaction and included formation
documents for Palm Canyon and AHI, an operating agreement
effectively making Mr. Brooks (through CF Advisors, XL, LLC, an
21
The only recommendation contained in the memoranda that
the Hamel companies implemented in 2001 was a recommendation in
Mr. Schmidt’s memorandum related to measures designed to guard
against foreign currency fluctuations.
22
The parties stipulated that “Galway Trust was owned by
Alan and Suzanne Hamel”.
23
The $325,000 fee was nonrefundable provided that Pryor
Cashman issued a tax opinion with respect to the MLD transaction
before Apr. 15, 2002. From the $325,000 payment, Cantley &
Sedacca distributed $50,000 to Pryor Cashman for its tax opinion
and $137,500 to EPIC as a referral fee.
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entity created by Mr. Brooks under Clarion Capital (CF Advisors),
see infra p. 22) a member of Palm Canyon, and various operational
documents with banks involved in the MLD transaction. The
documents also included notice, agreement, and payment documents
related to buying out Mr. Brooks’ Palm Canyon interest (through
CF Advisors, see infra pp. 26-27) (which did not occur until
December 18, 2001), and a letter authorizing the sale of all
positions held by Palm Canyon (which did not occur until December
27, 2001). On or around October 9, 2001, Mr. Hamel signed but
did not date those documents.
On October 10, 2001, AHI was incorporated under the laws of
Delaware.24 Mr. Hamel received 1,000 common shares of AHI as the
company’s sole shareholder.
On October 10, 2001, Palm Canyon was formed as a limited
liability company under the laws of Delaware. On or around
October 11, 2001, Palm Canyon established a brokerage account
with Deutsche Banc Alex. Brown,25 and Mr. Lamb, as trustee of the
Galway Trust, transferred $825,000 to this account.26 On October
11, 2001, Mr. Hamel executed an operating agreement for Palm
24
Cantley & Sedacca prepared all documents related to the
formation and organization of AHI and Palm Canyon and filed the
formation or incorporation documents with the applicable
government agencies.
25
Palm Canyon did not have a financial or bank account with
any other financial institutions or broker-dealers during 2001.
26
Mr. Brubaker handled all transactions related to Palm
Canyon’s Deutsche Banc Alex. Brown account.
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Canyon, effective as of October 9, 2001, naming himself the sole
member and acknowledging his capital contribution of $825,000 in
exchange for 100,000 class A units.27 Mr. Hamel also signed a
Form SS-4, Application for Employer Identification Number, dated
October 11, 2001, identifying Palm Canyon as a multiple-member
limited liability company and checking the “Partnership” box.
Mr. Hamel also executed a “Full Trading Authorization with
Privilege to Withdraw Money and/or Securities” with Deutsche Banc
Alex. Brown, dated October 11, 2001, authorizing Mr. Brooks to
act on behalf of Palm Canyon with respect to its Deutsche Banc
Alex. Brown account. On or around October 15, 2001, Mr. Hamel
and CF Advisors entered into an agreement for services related to
foreign currency investments. Under this arrangement, Mr. Hamel
purportedly authorized Mr. Brooks to select which foreign
currency trades to make on behalf of Palm Canyon within certain
risk parameters that Cantley & Sedacca had set.
B. The MLD Contracts
On October 15, 2001, Palm Canyon entered into MLD contracts;
it executed the trades that were part of the MLD strategy and
received two trade confirmations from Société Générale,28 each
27
As a limited liability company with only one member, Palm
Canyon was disregarded as an entity separate from its owner for
Federal income tax purposes, absent an election to be classified
as a corporation. Secs. 301.7701-2(a) and (b), 301.7701-3(a) and
(b)(1), Proced. & Admin. Regs.
28
Société Générale is an international bank headquartered in
(continued...)
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identified as a currency linked deposit swap. The MLD contracts
provided for offsetting deposits between Palm Canyon and Société
Générale to be made on October 16, 2001, in the amounts of
54,945,050, or $50 million using the spot exchange rate of
0.9100 U.S. dollar per euro.29 The MLD contracts required Palm
Canyon and Société Générale to repay the deposits on December 18,
2001, in U.S. dollars, together with a fixed yield on the deposit
amount computed at an annual rate of 3.665 percent ($300,326).
The MLD contracts provided for a potential premium interest
payment on the deposit that was structured as a European-style,
foreign currency digital option.30 Ostensibly, Mr. Brooks made
the foreign currency trades on the bet that the U.S. dollar would
strengthen against the Japanese yen.
One MLD contract included a call option on Japanese yen
purchased by Palm Canyon from Société Générale (long MLD
28
(...continued)
Paris, France, with offices in the United States.
29
All of the amounts referenced in the MLD contracts were
denominated in euro. For purposes of this opinion, we substitute
U.S. dollars for euro using the Oct. 16, 2001, exchange rate of
0.9100 U.S. dollar per euro, consistent with the rate used in the
MLD contracts.
30
An option is a contract that gives the buyer of the option
the right, but not the obligation, to buy or sell an asset at a
predetermined price (strike price) at some time in the future.
The right to buy in the future is a call option, and the right to
sell is a put option. A European-style option cannot be
exercised before its expiration date. A digital option has a
fixed payout amount or no payout, depending on whether the price
of the underlying asset is above or below the strike price.
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option).31 The long MLD option required Palm Canyon to pay
Société Générale a $5 million premium on October 16, 2001.32
The long MLD option also required Société Générale to pay Palm
Canyon a fixed $8 million premium interest payment, payable on
December 18, 2001, if the Japanese yen to U.S. dollar exchange
rate on December 14, 2001 (spot market exchange rate), as
determined by Société Générale,33 were equal to or greater than
124.65. If the spot market exchange rate were less than 124.65
Japanese yen to a U.S. dollar, no premium interest was due.
The other MLD contract included a call option on Japanese
yen sold by Palm Canyon to Société Générale (short MLD option).34
The short MLD option required Société Générale to pay Palm Canyon
31
The party purchasing an option is in the “long” position
with respect to that option.
32
The purchaser of an option pays a premium for its
position, which amount represents the option’s value on the
transaction date.
33
Société Générale was the calculation agent for both MLD
contracts, giving the bank the exclusive right to select the spot
market exchange rate that would apply to the options. During
2001 the accepted industry practice for a calculation agent
determining a spot market exchange rate under an option contract
was to contact three or four banks on the determination date to
request a spot price of the currency under the contract. The
calculation agent would ask each bank for both a bid and an ask
price, the prices at which the bank would buy and sell the
currency, respectively. The bid-ask spread is generally 3 to 5
“pips” (a pip is the smallest price interval normally used in
pricing currencies; for Japanese yen per U.S. dollar quotations a
pip is .01). The calculation agent could choose any of those
prices as the spot market exchange rate.
34
The party selling the option is in the “short” position
with respect to that option.
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a $4,945,000 premium on October 16, 2001. The short MLD option
also required Palm Canyon to pay Société Générale a fixed
$7,912,000 premium interest payment, payable on December 18,
2001, if the spot market exchange rate, as determined by Société
Générale, were equal to or greater than 124.67 Japanese yen to a
U.S. dollar. If the spot market exchange rate were less than
124.67 Japanese yen to a U.S. dollar, no premium interest was
due.
The terms of the MLD contracts are summarized as follows:
Long MLD option Short MLD option
Deposit $50,000,000 $50,000,000
Fixed yield
(3.665 percent) 300,326 300,326
Premium payment 5,000,000 4,945,000
Potential premium
interest payment 8,000,000 7,912,000
On the basis of the offsetting positions of the long and short
MLD options, three possible outcomes existed with respect to the
premium interest provisions of the MLD contracts. First, if the
spot market exchange rate were below 124.65 Japanese yen to a
U.S. dollar, both the long and short MLD options would be “out-
of-the-money”, and neither Palm Canyon nor Société Générale would
receive a premium interest payout under the respective MLD
contract. Second, if the spot market exchange rate were at or
above 124.67 Japanese yen to a U.S. dollar, the long and short
MLD options would be “in-the-money”, and both Palm Canyon and
Société Générale would receive a premium interest payout under
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the respective MLD contract. In this circumstance, Palm Canyon
would receive a net premium interest payment of $88,000, the
difference between Société Générale’s $8 million premium interest
payment to Palm Canyon and Palm Canyon’s $7,912,000 premium
interest payment to Société Générale. Third, if the spot market
exchange rate were 124.65 or 124.66 Japanese yen to a U.S.
dollar, the MLD options would be in the “sweet spot”, and Palm
Canyon would receive a premium interest payout of $8 million
under the long MLD option while not owing a premium interest
payout to Société Générale under the short MLD option. Under no
circumstances would Palm Canyon owe premium interest to Société
Générale under the short MLD option without receiving a premium
interest payout from Société Générale under the long MLD option.
Neither Palm Canyon nor Société Générale transferred funds
with respect to the $50 million offsetting deposits on October
16, 2001. Additionally, neither party transferred funds
equivalent to the full option premiums required under the MLD
contracts; instead, on October 16, 2001, Palm Canyon paid Société
Générale a $55,000 net premium, the difference between the $5
million long MLD option premium Palm Canyon owed to Société
Générale and the $4,945,000 short MLD option premium Société
Générale owed to Palm Canyon.35
35
Of the $55,000 net premium, Société Générale retained
$12,500, paid Deutsche Banc Alex. Brown $20,500, and distributed
$22,000 to “Risk”.
- 22 -
C. Transactions Following the MLD Contracts
As of October 17, 2001, Mr. Hamel assigned AHI his 100,000
class A units in Palm Canyon in exchange for 1,000 AHI shares,
making AHI the sole member of Palm Canyon. Mr. Hamel appointed
himself as AHI’s sole director, president, and treasurer-
secretary.
Also, as of October 17, 2001, Mr. Hamel transferred his
1,000 AHI shares to Thighmaster as a capital contribution, making
Thighmaster AHI’s sole shareholder. Thighmaster approved and
authorized the capital contribution of Mr. Hamel’s AHI shares,
accepted AHI as a qualified subchapter S subsidiary, and ratified
all prior actions by AHI’s directors and officers, including Mr.
Hamel.
By an amended operating agreement dated October 19, 2001,
AHI and CF Advisors made CF Advisors a member of Palm Canyon.36
The amended Palm Canyon operating agreement reduced AHI’s
ownership interest in Palm Canyon to 99,000 class A units and
stated that CF Advisors contributed $5,000 to be paid out of
investment adviser fees in exchange for 1,000 class B units. The
operating agreement also provided that CF Advisors would receive
36
Mr. Brooks also became a partner or member of the
partnership or limited liability company in each of the
approximately 150 MLD transactions in which he participated.
- 23 -
a quarterly investment advisory fee and a one-time, fixed $20,000
fee specifically for 2001.37
When CF Advisors became a member in Palm Canyon, Palm Canyon
became classified as a partnership for Federal income tax
purposes.38 Accordingly, AHI, which until then had been the sole
member of Palm Canyon, was treated under section 721 as
contributing all of the assets of the limited liability company,
which on the date of the contribution consisted of $825,000 and
the long MLD option, to the new partnership in exchange for a
partnership interest.39 Under section 722, AHI’s basis in its
Palm Canyon partnership interest equaled its basis in the assets
that it was deemed to contribute to the newly created
partnership.40 Consequently, AHI claimed an initial $5,825,000
basis in its Palm Canyon partnership interest, which included the
original $825,000 contributed by Mr. Hamel and the $5 million
premium Palm Canyon purportedly paid under the long MLD option.
37
On Oct. 23, 2001, Palm Canyon paid CF Advisors $15,000 of
the $20,000 investment adviser fee owed.
38
When a limited liability company acquires two or more
members, it becomes classified as a partnership for Federal
income tax purposes, absent an election to be treated as a
corporation. Sec. 301.7701-3(a) and (b), Proced. & Admin. Regs.
39
CF Advisors’ $5,000 contribution to be paid out of
investment adviser fees was treated as a contribution to the new
partnership in exchange for an ownership interest in Palm Canyon.
40
CF Advisors’ basis in its Palm Canyon partnership interest
equaled the $5,000 it contributed to the partnership, to be paid
out of the investment adviser fee it was due.
- 24 -
AHI did not account for any potential liability with respect to
the short MLD option under section 752(b).41 AHI’s $5,825,000
basis in its Palm Canyon partnership interest was significantly
higher than its net economic outlay in acquiring the partnership
interest, which was $825,000 and the $55,000 net premium Palm
Canyon paid with respect to the MLD options.
Between October 22 and November 21, 2001, Palm Canyon
entered into four separate 30-day foreign currency option
agreements with Deutsche Bank AG involving Swiss francs, Japanese
yen, British pounds, and Canadian dollars.42 Each contract
required a $5,000 premium payment, which Palm Canyon transferred
to Deutsche Bank AG. Palm Canyon earned a $2,076 net profit on
the four options.
D. Termination of the MLD Contracts
As of December 7, 2001 (termination date), Palm Canyon and
Société Générale terminated the MLD contracts,43 providing for a
full release of all respective obligations stated in the
41
Under sec. 752(b), any decrease in a partner’s share of
the partnership’s liabilities, or any decrease in a partner’s
individual liabilities through the assumption by the partnership
of the partner’s liabilities, is treated as a distribution of
money to the partner by the partnership. Under sec. 733, a
partner’s basis in his partnership interest is reduced by the
amount of any money distributed to the partner.
42
Mr. Brooks placed similar minor foreign currency trades
for each of his 150 MLD strategy clients.
43
Neither party raised an issue regarding the Federal income
tax consequences of the early termination of the MLD contracts.
- 25 -
confirmations and for a termination payment of $61,600 by Société
Générale to Palm Canyon.44 On December 7, 2001, the Japanese yen
to U.S. dollar exchange rate reported by the New York Federal
Reserve Bank was 125.62, putting both the MLD short and long
options in the money. Because of the early termination of the
MLD contracts, Palm Canyon earned $6,600 on the MLD contracts,
the difference between the $61,600 termination payment and the
$55,000 net premium paid to Société Générale, before taking into
account the $345,000 in fees paid to Cantley & Sedacca and CF
Advisors.
Neither Palm Canyon nor Société Générale transferred $50
million on the termination date, or at any time thereafter, to
repay the offsetting deposits. Similarly, neither party paid the
fixed yield to its counterparty.
E. Activities Following the Termination of the MLD
Contracts
On December 14, 2001, Palm Canyon purchased Canadian dollars
at a conversion rate of 0.67226440 Canadian dollar per U.S.
dollar for $1,000 (Canadian dollars position).45
44
The termination payment represented the premium Société
Générale was willing to pay Palm Canyon to cancel the MLD
contracts.
45
Mr. Brooks bought Canadian currency in many of the other
MLD transactions in which he participated. In the instances
where he did not purchase Canadian currency, Mr. Brooks purchased
equity interests, presumably so the character of the loss on the
disposition of the equity interest would be capital instead of
ordinary.
- 26 -
Both Mr. Lamb and Mr. Barish knew that AHI had to acquire CF
Advisors’ membership interest in Palm Canyon before the end of
Thighmaster’s 2001 tax year to recognize the MLD strategy’s tax
benefit.46 As of December 18, 2001, AHI purchased CF Advisors’
1,000 class B units in Palm Canyon for $5,000.47 Because of
AHI’s acquisition of CF Advisors’ membership units, AHI became
again the sole member of Palm Canyon.48 Consequently, under
section 708(b)(1), Palm Canyon’s partnership status was
terminated, triggering a deemed distribution of Palm Canyon’s
assets. See Rev. Rul. 99-6, 1999-1 C.B. 432. On December 18,
2001, Palm Canyon’s only assets were $820,522 and the Canadian
dollars position. Mr. Hamel, on behalf of AHI, transferred
$5,000 to CF Advisors in payment for its membership units, and
the remaining $815,522 and the Canadian dollars position were
deemed distributed to AHI. Under section 732(b),49 AHI claimed a
46
Mr. Brooks terminated his partnership or membership
interest before Dec. 31, 2001, in all of the approximately 150
MLD transactions he entered into in 2001.
47
AHI bought out CF Advisors’ Palm Canyon interest without
any negotiation, paying $5,000, the same amount as CF Advisors’
original contribution. Mr. Brooks was bought out without any
negotiation in each of the 150 MLD transactions in which he
participated in 2001.
48
Palm Canyon again became a single-member limited liability
company, causing it to be disregarded as an entity separate from
its owner for Federal income tax purposes, absent an election to
be classified as a corporation. Secs. 301.7701-2(a) and (b),
301.7701-3(a) and (b)(1), Proced. & Admin. Regs.
49
Under sec. 732(b), the basis of property (other than
(continued...)
- 27 -
$5,001,000 basis in the Canadian dollars position, which equaled
AHI’s adjusted basis in its Palm Canyon partnership interest,
minus the cash it received in the liquidating distribution. See
infra p. 31.
By letter dated December 18, 2001, Mr. Hamel informed Mr.
Brubaker of CF Advisors’ sale of its interest in Palm Canyon to
AHI and indicated that Mr. Brooks no longer had investment
authority over Palm Canyon’s Deutsche Banc Alex. Brown account.
As discussed above, see supra pp. 15-16, on or around October 9,
2001, Mr. Hamel had signed but had not dated the agreement,
payment, and notice documents relating to CF Advisors’ sale of
its Palm Canyon partnership interest. The December 18, 2001,
dates on these documents were not in Mr. Hamel’s handwriting.50
After 2001 Mr. Brooks had no involvement with any of the
Hamel companies. Mr. Lamb turned over the Hamel companies’
foreign currency trading activities to Mr. Brubaker and Todd
Clendenning at Deutsche Bank Alex. Brown.
By letter dated December 24, 2001, Mr. Hamel authorized Mr.
Brubaker to sell Palm Canyon’s Canadian dollar position. Mr.
Hamel had signed the letter on or around October 9, 2001, but had
49
(...continued)
money) distributed by a partnership to a partner in liquidation
of the partner’s interest equals the partner’s adjusted basis in
the partnership, reduced by any money distributed in the same
transaction.
50
The record does not indicate who dated the Dec. 18, 2001,
letter or when it was dated.
- 28 -
not dated it at that time.51 On December 27, 2001, pursuant to
the December 24, 2001, letter that Mr. Hamel had signed in
October 2001, the Canadian dollars position was sold at a
conversion rate of 0.59029500 Canadian dollar to a U.S. dollar
for $878.07. Thighmaster claimed an ordinary tax loss of
$5,001,000 as a result of the disposition of the Canadian dollars
position.52 See infra p. 32.
As of December 31, 2001, Mr. Lamb became a director and the
treasurer/CFO and secretary of AHI.
F. Pryor Cashman Opinion
On or around February 7, 2002, Mr. Hamel engaged Pryor
Cashman to issue a tax opinion with respect to the MLD
transaction.53 Cantley & Sedacca provided Pryor Cashman with
documents relating to the MLD transaction for Pryor Cashman to
use in the preparation of its tax opinion. On February 13, 2002,
Mr. Kushner mailed Mr. Lamb a copy of Pryor Cashman’s opinion
letter (Pryor Cashman opinion) regarding the MLD transaction. A
51
The handwriting dating the letter Dec. 24, 2001, was not
Mr. Hamel’s. The letter resulted in the sale of Palm Canyon’s
Canadian dollars position, which was purchased on Dec. 14, 2001,
for $1,000 and which had been deemed distributed to AHI on Dec.
18, 2001.
52
The disposition of the Canadian dollars position was a
foreign currency transaction that resulted in an ordinary loss.
See sec. 988(a)(1)(A), (b)(2), and (c)(1); sec. 1.988-1(a)(1),
Income Tax Regs.
53
During 2001 and 2002 Pryor Cashman prepared between 40 and
50 tax opinions relating to the MLD strategy.
- 29 -
letter attached to the Pryor Cashman opinion stated that the
opinion could not be relied on until Mr. Hamel and Mr. Brooks
signed and returned a series of representations on which Pryor
Cashman relied in issuing its tax opinion. One of the
representations included a statement by Mr. Hamel that he entered
into the MLD transaction for business reasons with the intent to
make a profit. Mr. Brooks provided his representations to Pryor
Cashman, but Mr. Hamel did not.
In anticipation of receiving the representations of Mr.
Hamel and Mr. Brooks, Pryor Cashman issued an opinion concluding
that Palm Canyon’s tax treatment of the MLD transaction would
“more likely than not” be respected. However, because Mr. Hamel
never supplied the requested representations, neither Palm Canyon
nor Mr. Hamel was entitled to rely on the Pryor Cashman opinion
by reason of its terms, which were never satisfied.
Nevertheless, after reviewing the Pryor Cashman opinion, Mr. Lamb
and Mr. Barish gave Mr. Hamel a favorable recommendation
regarding the MLD transaction.
G. Palm Canyon’s Trading Activity After 2001
In 2002 Palm Canyon continued to make foreign currency
trades with Deutsche Bank AG, but at a reduced level. In 2002
Palm Canyon entered into three foreign currency investment
contracts and earned a total profit of $70,403. In 2003 the
Hamel companies stopped making foreign currency trades. On June
- 30 -
1, 2005, Palm Canyon’s status as a limited liability company
under the laws of Delaware was canceled.
V. Relevant Tax Reporting for 2001
A. Palm Canyon’s Return
On July 19, 2002, Palm Canyon filed a Form 1065, U.S. Return
of Partnership Income, for 2001 (Palm Canyon’s return).54 Palm
Canyon’s return reported the following items for AHI and CF
Advisors:
AHI CF Advisors
Capital contributions $5,825,000 $5,000
Share of income/expenses (8,478) -0-
Guaranteed payments -0- 20,000
Distributions 5,816,522 5,000
Ending capital account -0- -0-
The $5,825,000 in capital contributions from AHI that Palm Canyon
reported on its return consisted of Mr. Hamel’s $825,000 and the
$5 million premium Palm Canyon purportedly paid to Société
Générale.
The net amount of Palm Canyon’s separately stated
partnership items was ($8,478), all of which Palm Canyon
allocated to AHI.55 This amount included, among other items of
54
On the recommendation of Mr. Ivsan, Robert Kipp, a partner
in the Tax Practice Group of BDA&K Business Services, Inc., an
accounting and tax preparation service located in Dallas, Tex.,
prepared Palm Canyon’s return.
55
Palm Canyon’s return reported the following separately
stated partnership items:
(continued...)
- 31 -
income and expenses, $900,326 of interest income purportedly
attributable to the long MLD option and $893,726 of interest
expense purportedly attributable to the short MLD option.
The $5,816,522 distribution to AHI reported on Palm Canyon’s
return resulted from the liquidation of the Palm Canyon
partnership for Federal income tax purposes on December 18, 2001.
AHI claimed a $5,816,522 adjusted basis in its Palm Canyon
partnership interest at the end of Palm Canyon’s 2001 tax year.56
AHI received $815,522 in the deemed distribution, and under
section 732(b), it allocated its remaining basis in its Palm
Canyon partnership interest to the Canadian dollars position,
giving AHI a $5,001,000 adjusted basis in the Canadian dollars
position. See Rev. Rul. 99-6, supra.
B. Thighmaster’s Return
For 2001 Thighmaster was an S corporation for Federal income
tax purposes and the parent of a group of wholly owned subsidiary
55
(...continued)
Item Amount
Interest income $900,326
Interest expense (893,726)
Dividend income 3,004
Net gain on Deutsche Bank options 2,076
Guaranteed payment to CF Advisors (20,000)
Wire fees (50)
Nondeductible expenses (108)
Total (8,478)
56
AHI’s $5,816,522 basis in its Palm Canyon partnership
interest at the end of the partnership’s 2001 tax year
represented AHI’s $5,825,000 initial partnership interest basis
minus its share of separately stated partnership items ($8,478).
- 32 -
corporations that filed a consolidated Form 1120S, U.S. Income
Tax Return for an S Corporation (Thighmaster’s return).57
Thighmaster included AHI on its return as a qualified subchapter
S subsidiary.58
On its return, Thighmaster reported the following items for
AHI: (1) Each of the separately stated items of income and
deductions from Palm Canyon (net amount of negative $8,478); (2)
$878 of additional interest income; and (3) $5,001,000 in “Other
deductions” for “loss on currency trading”. The additional
interest income and other deductions for loss on currency trading
represented Thighmaster’s tax reporting of AHI’s December 27,
2001, sale of the Palm Canyon Canadian dollars position for
$878.07. Although the sale of the Canadian dollars position
resulted in an economic loss of only $121.93 ($1,000 - $878.07),
Thighmaster claimed a $5,001,000 ordinary tax loss on the sale
because AHI allegedly had acquired a $5,001,000 adjusted basis in
the Canadian dollars position from the December 18, 2001,
liquidation of the Palm Canyon partnership.59 Sec. 732(b).
57
Mr. Lamb prepared Thighmaster’s 2001 Form 1120S.
58
By letter dated Dec. 31, 2001, the IRS notified
Thighmaster that it approved the qualified subch. S subsidiary
election for AHI and terminated AHI’s subch. S status.
59
It is not clear why Thighmaster calculated the loss on the
sale of the Canadian currency position without regard to the $878
proceeds of sale.
- 33 -
On its 2001 return, Thighmaster combined AHI’s 2001
separately stated items of income and deductions distributed from
Palm Canyon with other separately stated items of income and
deductions of Thighmaster and its subsidiaries for 2001,
resulting in negative $18,431 of consolidated separately stated
items of income and deductions for 2001, all of which Thighmaster
allocated to Mr. Hamel, the sole shareholder of Thighmaster.
Thighmaster also combined AHI’s “Other deductions” of $5,001,000
with the income and expenses of Thighmaster and its other
subsidiaries for 2001, resulting in a consolidated ordinary loss
of $1,921,579 for 2001, all of which Thighmaster allocated to Mr.
Hamel.
C. The Hamels’ Return
On October 7, 2002, the Hamels filed a joint Form 1040, U.S.
Individual Income Tax Return, for 2001, which showed Mr. Hamel’s
distributive share of Thighmaster’s 2001 separately stated items
of income and deductions (net loss of $18,431) and Thighmaster’s
2001 ordinary loss of $1,921,579. The Hamels reported zero
taxable income on their return and no 2001 Federal income tax
liability. Excluding the items allocated to Mr. Hamel for 2001
from Palm Canyon and the MLD transaction, through AHI and
Thighmaster, the Hamels would have had taxable income of
$3,989,130 and an approximate Federal income tax liability of
$1,532,000.
- 34 -
VI. FPAA
Respondent conducted an examination of Palm Canyon’s 2001
tax year. In March 2005 Palm Canyon entered into an agreement to
extend the period of limitations for assessment of tax for 2001
until December 31, 2005. The Hamels similarly agreed to extend
the period of limitations for assessment of tax, including items
attributable to partnership items, for 2001 to December 31, 2005.
On December 20, 2005, respondent separately mailed an FPAA
to Palm Canyon, its partners, AHI (as TMP), and Thighmaster.
Respondent determined that Palm Canyon was a sham and that the
MLD transaction lacked economic substance, had no business
purpose, and constituted an economic sham. Respondent
disregarded the effects of the MLD transaction and adjusted
various partnership items on Palm Canyon’s return, most notably
disallowing the $5,001,000 section 732(b) distribution that
resulted from the liquidation of Palm Canyon.60 This adjustment
effectively disallowed the resulting $1,921,579 ordinary loss
60
In the FPAA respondent made adjustments to the following
items on Palm Canyon’s return:
Item Reported Corrected Adjustment
Portfolio interest $900,326 -0- $900,326
Portfolio dividends 3,004 -0- 3,004
Other portfolio income 2,076 -0- 2,076
Deductions 20,050 -0- 20,050
Interest expense 893,726 -0- 893,726
Investment income 903,330 -0- 903,330
Investment expenses 20,050 -0- 20,050
Distributions 5,001,000 -0- 5,001,000
- 35 -
that the Hamels claimed on their return. Respondent also
determined that the accuracy-related penalty under section 6662
should be imposed.
On March 20, 2006, petitioner timely filed a petition for
readjustment of partnership items and penalty under section 6226.
Petitioner contends that respondent’s proposed adjustments are
incorrect, that Palm Canyon correctly reported all items of
income, loss, basis, and contributions to capital on its return,
and that none of respondent’s alternative determinations with
respect to the section 6662 penalty are appropriate. Petitioner
also alleges that the statute of limitations on assessments bars
respondent’s proposed adjustments.
Petitioner’s case was tried at a special trial session in
Los Angeles, California. Petitioner called the following
witnesses: Mr. Hamel, Mr. Lamb, Mr. Brooks, Mr. Kushner, and Mr.
Barish. Petitioner did not present any expert testimony.
Respondent called the following witnesses: Mr. Barish, Mr.
Cantley, Mr. Wilson, and two expert witnesses, Hendrik
Bessembinder (Mr. Bessembinder) and Thomas Murphy (Mr. Murphy).
OPINION
I. Jurisdiction Under TEFRA
Under the unified partnership audit and litigation
procedures of the Tax Equity and Fiscal Responsibility Act of
1982, Pub. L. 97-248, sec. 402(a), 96 Stat. 648, the tax
- 36 -
treatment of any partnership item, except as otherwise provided
in subchapter C, must be determined at the partnership level.
Sec. 6221. Section 6226(a) authorizes a TMP to file a petition
for readjustment of partnership items within 90 days after the
date on which an FPAA is mailed to the TMP. In a partnership-
level proceeding filed pursuant to section 6226(a), this Court
has jurisdiction to review all partnership items for the
partnership year to which the FPAA relates and to review the
allocation of such items among the partners. Sec. 6226(f).
Section 6231(a)(3) defines a “partnership item” as:
any item required to be taken into account for the
partnership’s taxable year under any provision of
subtitle A to the extent regulations prescribed by the
Secretary provide that, for purposes of this subtitle,
such item is more appropriately determined at the
partnership level than at the partner level.
Section 301.6231(a)(3)-1(a), Proced. & Admin. Regs., contains an
extensive list of matters that constitute partnership items,
including: (1) All items of partnership income, gain, loss,
deduction, credit, and liabilities, and each partner's share
thereof; and (2) partnership contributions and distributions.
Sec. 301.6231(a)(3)-1(a)(1)(i), (v), (4), Proced. & Admin. Regs.
In Petaluma FX Partners, LLC v. Commissioner, 131 T.C. 84, 97
(2008), we held that the determination whether a partnership is a
sham, lacks economic substance, or otherwise should be
disregarded for tax purposes is also a partnership item.
- 37 -
A nonpartnership item is an item that is not a partnership
item and whose tax treatment is determined at the partner level.
Sec. 6231(a)(3) and (4). An affected item is any item to the
extent it is affected by a partnership item, the tax treatment of
which is determined at a partner-level proceeding after the
underlying partnership item(s) is determined at the partnership
level.61 Sec. 6231(a)(5); Jenkins v. Commissioner, 102 T.C. 550,
554 (1994).
II. Statute of Limitations on Assessments
Section 6229(a) provides that the Commissioner must assess
any deficiency attributable to a partnership item within 3 years
after the date the partnership tax return was filed or within 3
years after the due date of the partnership tax return
(determined without regard to extensions), whichever is later.
Under section 6229(b)(1), the 3-year period can be extended with
respect to all partners by an agreement entered into by the
Secretary and the TMP, or any other person authorized by the
partnership in writing to enter into such an agreement, before
the expiration of such period. The 3-year period is suspended
for at least the 90-day period following the mailing of an FPAA,
61
There are two types of affected items: (1) Computational
affected items that follow from the result of a partnership-
level proceeding and (2) affected items that may require factual
development at the partner level. See N.C.F. Energy Partners v.
Commissioner, 89 T.C. 741, 744-745 (1987).
- 38 -
during which an action may be brought under section 6226.62 Sec.
6229(d). Additionally, if a petition is filed challenging the
FPAA under section 6226, the period in which an assessment can be
made is suspended until the decision of the court becomes final,
plus 1 additional year. Sec. 6229(d).
Petitioner argues that the statute of limitations on
assessments bars respondent’s proposed adjustments in the FPAA.
However, before the expiration of the 3-year period following the
filing of Palm Canyon’s return, petitioner (through Mr. Barish)
entered into an agreement with respondent extending the period of
limitations for 2001 until December 31, 2005. Respondent timely
mailed petitioner the FPAA on December 20, 2005,63 and under
section 6229(d), the 3-year period of limitations for assessment
was suspended at least for the 90-day period following the
mailing of the FPAA. When petitioner subsequently filed a
petition challenging the FPAA under section 6226, the assessment
period was further suspended until the decision of this Court
becomes final, plus 1 additional year. Sec. 6229(d).
Accordingly, the section 6229(a) period for assessments has not
yet expired, and we conclude that respondent is not barred from
62
Under sec. 6226(b), if the TMP does not file a petition
within the 90-day period, any notice partner and any 5-percent
group may file a petition within 60 days after the close of the
90-day period.
63
Petitioner concedes that respondent mailed the FPAA within
the 3-year assessment period, as extended by the agreement.
- 39 -
assessing any deficiencies in tax relating to adjustments to
partnership items on Palm Canyon’s return.64
III. Burden of Proof
Generally, the burden of proof is on the taxpayer in actions
challenging the adjustments to partnership items made by the
Commissioner, unless otherwise provided by statute or determined
by the Court. Rules 142(a), 240(a). Section 7491(a)(1),
however, provides that the burden of proof shall be on the
Commissioner if the taxpayer introduces credible evidence with
respect to any factual issue relevant to ascertaining the
liability of the taxpayer for any income tax. For section
7491(a)(1) to apply, the taxpayer must also satisfy the
limitations contained in section 7491(a)(2). Petitioner does not
contend that section 7491(a)(1) applies, nor has it demonstrated
that it satisfies the requirements of section 7491(a)(2).
Consequently, we hold that petitioner has the burden of proof as
to any disputed factual issue. See Rules 142(a), 240(a).
64
Because petitioner commenced a proceeding in this Court
under sec. 6226, respondent is restricted from assessing and
collecting a deficiency attributable to a partnership item until
at least the decision of this Court is final. See sec.
6225(a)(2). In addition, respondent may need to send a
deficiency notice with respect to affected items. See sec.
6230(a)(2)(A)(i).
- 40 -
IV. Economic Substance of the MLD Transaction65
This case arises from petitioner’s participation in a
strategy that respondent has characterized as a Son-of-BOSS tax
shelter.66 In its simplest terms, the MLD transaction purports
to produce a tax benefit in the form of a substantial loss by
manipulating the partnership tax rules and taking advantage of
caselaw established in other factual contexts that promoters of
the MLD strategy contend excludes contingent liabilities from the
definition of a liability under section 752. See Helmer v.
Commissioner, T.C. Memo. 1975-160, discussed infra pp. 43-47. An
MLD transaction typically involves several steps, and the MLD
65
The phrase “MLD contracts” refers to the contracts that
Palm Canyon entered into with Société Générale. The phrase “MLD
transaction” refers to the overall strategy, including the MLD
contracts and creation and termination of the Palm Canyon
partnership.
66
A Son-of-BOSS transaction can be summarized as follows:
a variation of a slightly older alleged tax shelter
known as BOSS, an acronym for “bond and options sales
strategy.” There are a number of different types of
Son-of-BOSS transactions, but what they all have in
common is the transfer of assets encumbered by
significant liabilities to a partnership, with the goal
of increasing basis in that partnership. The
liabilities are usually obligations to buy securities
and typically are not completely fixed at the time of
transfer. This may let the partnership treat the
liabilities as uncertain, which may let the partnership
ignore them in computing basis. If so, the result is
that the partners will have a basis in the partnership
so great as to provide for large--but not out-of-
pocket--losses on their individual tax returns. * * *
Kligfeld Holdings v. Commissioner, 128 T.C. 192, 194 (2007).
-41-
transaction at issue in this case is no exception. The MLD
transaction consisted of the following. First, Palm Canyon
entered into the offsetting MLD contracts, whose terms called for
a $5 million premium payment from Palm Canyon to Société Générale
for the long MLD option and a $4,945,000 premium payment from
Société Générale to Palm Canyon for the short MLD option, but
resulted in only a net premium payment of $55,000 by Palm Canyon.
After Palm Canyon entered into the MLD contracts, CF Advisors
joined AHI as the second member in Palm Canyon, and Palm Canyon
became a partnership for Federal income tax purposes. On the
formation of the Palm Canyon partnership, AHI was treated as
contributing all of Palm Canyon’s existing assets, which included
$825,000 in cash and the long MLD option, to the new partnership
in exchange for a partnership interest. AHI took an initial
basis of $5,825,000 in its Palm Canyon partnership interest,
which represented $825,000 and the cost of the long MLD option,
the purported $5 million premium payment to Société Générale.
However, because Palm Canyon’s liability for the premium interest
payment under the short MLD option purportedly was contingent on
the spot market exchange rate, AHI did not reduce its basis in
its partnership interest under section 752(b) with respect to
Palm Canyon’s assumption of the short MLD option.67 Therefore,
67
AHI based its position on Helmer v. Commissioner, T.C.
Memo. 1975-160, which AHI contends stands for the proposition
(continued...)
-42-
AHI claimed an inflated tax basis in its Palm Canyon partnership
interest that reflected a $5 million premium paid for the MLD
long option, even though AHI’s net economic outlay to acquire the
partnership interest and the value of the partnership interest
were significantly less. When CF Advisors subsequently sold its
Palm Canyon partnership interest to AHI, Palm Canyon’s
partnership status ceased under section 708(b)(1), triggering a
liquidation and a deemed distribution of Palm Canyon’s assets.
See Rev. Rul. 99-6, supra. In the liquidation, AHI was deemed to
receive $815,522 and the Canadian dollars position, Palm Canyon’s
only asset at the time. Under section 732(b), AHI took a
$5,001,000 basis in the Canadian dollars position, which equaled
its adjusted basis in its partnership interest minus the $815,522
liquidating distribution. Consequently, on the disposition of
the Canadian dollars position AHI claimed that it realized and
recognized a $5,001,000 ordinary loss for income tax purposes.
We must decide whether Palm Canyon’s MLD transaction should
be respected for Federal income tax purposes. First, we address
whether Palm Canyon’s tax treatment of the MLD transaction fits
within the literal meaning of the Code, as interpreted by caselaw
at the time. Second, we examine whether the MLD transaction
should be disregarded under the economic substance doctrine.
67
(...continued)
that a contingent obligation is not considered a liability for
purposes of sec. 752. See infra pp. 43-47.
-43-
When considering the MLD transaction, we review the economic
substance of the transaction as a whole, including the MLD
contracts68 and the creation and liquidation of the Palm Canyon
partnership, that occurred as a result of CF Advisors’ transitory
membership in Palm Canyon.
A. Definition of a “Liability” Under Section 752
Under section 752(b), a partnership’s assumption of a
partner’s liability is treated as a distribution of money to the
partner by the partnership, which reduces that partner’s basis in
its partnership interest by the amount of the liability assumed.
Sec. 733. For petitioner to receive the tax benefit from the MLD
transaction, the short MLD option must be excluded from the
definition of a liability for section 752 purposes so that AHI
does not have to reduce its basis in its Palm Canyon partnership
interest.
At the time of the MLD transaction, the term “liability”, as
used in section 752, was not defined in either the Code or the
regulations. However, several courts, including this Court, had
held that a contingent obligation is not a liability under
section 752. In Helmer v. Commissioner, T.C. Memo. 1975-160, a
partnership granted an option to buy partnership property in
exchange for a series of cash premiums from the option holder.
68
Because the deposits and fixed yield provisions of the MLD
contracts were offsetting, in our analysis we ignore their
effect.
-44-
Upon the exercise of the option by the option holder the
partnership would have had to reduce the property purchase price
by the cash premiums it received. The partnership, however, was
not obligated to return the cash premiums if the purchaser failed
to exercise the option. The partnership argued that the premium
payments were partnership liabilities because the partnership
would have to credit these payments against the purchase price if
the option holder exercised the option. We held that no
liability arose upon receipt of the option premiums because the
option agreement “created no liability on the part of the
partnership to repay the funds paid nor to perform any services
in the future.” In other opinions we have applied similar
reasoning and have held that comparable obligations were not
liabilities for section 752 purposes. See LaRue v. Commissioner,
90 T.C. 465, 479-480 (1988) (contingent obligations that were not
fixed obligations of the partnership and were not sufficiently
determinable in amount were not liabilities for section 752
purposes); Long v. Commissioner, 71 T.C. 1, 7-8 (1978)
(contingent or contested items such as creditor’s claims were not
liabilities for section 752 purposes until they became fixed or
liquidated), supplemented by 71 T.C. 724 (1979), affd. in part
and remanded on other grounds 660 F.2d 416 (10th Cir. 1981).
On its face, Palm Canyon’s liability under the short MLD
option was contingent on the spot market exchange rate. If the
-45-
Japanese yen to U.S. dollar exchange rate were equal to or
greater than 124.67, Palm Canyon owed a $7,912,000 premium
interest payment; if the exchange rate were less than 124.67
Japanese yen to a U.S. dollar, Palm Canyon owed nothing. Because
Palm Canyon’s liability under the short MLD option appears on its
face to be a contingent obligation, the short MLD option would
not qualify as a section 752 liability if the Helmer analysis
applies.69 If, on the other hand, Palm Canyon’s liability under
the short MLD option was certain to arise because of the way the
entire MLD transaction was structured, then the reasoning of
Helmer would not control the case at hand.
Courts that have considered transactions in which partners
contributed pairs of options to partnerships have reached
inconsistent conclusions.70 See, e.g., Maguire Partners-Master
69
As discussed below, in 2003 the Department of the Treasury
promulgated proposed regulations that altered the definition of a
liability for sec. 752 purposes and explicitly stated that “The
definition of a liability contained in these proposed regulations
does not follow Helmer v. Commissioner, T.C. Memo. 1975-160.” 68
Fed. Reg. 37436 (June 24, 2003). These regulations were
finalized in 2005. See infra pp. 47-49. The new definition of
liability, however, applies only to liabilities incurred or
assumed by a partnership on or after June 24, 2003. Sec. 1.752-
1(a)(4)(iv), Income Tax Regs.
70
Recent cases addressing the definition of a sec. 752
liability in the context of short sales have been more
consistent; courts have held that an obligation to close out a
short sale constitutes a liability for sec. 752 purposes although
the value of the obligation at the time of its contribution is
indeterminable. See Kornman & Associates, Inc. v. United States,
527 F.3d 443 (5th Cir. 2008) (relying on Rev. Rul. 95-26, 1995-1
(continued...)
-46-
Invs., LLC v. United States, 103 AFTR 2d 763 at 775, 2009-1 USTC
par. 50,215, at 87,447 (C.D. Cal. 2009) (characterizing a short
option as a liability for purposes of section 752 because such
characterization is consistent with the economic reality of the
partner’s contribution); Stobie Creek Invs., LLC v. United
States, 82 Fed. Cl. 636, 665-667 (2008) (stating that the legal
doctrines delineated in Helmer apply to the short option that was
contributed to a partnership along with a long option); Jade
Trading, LLC v. United States, 80 Fed. Cl. 11, 44-45 (2007)
(concluding that a sold call option contributed to a partnership
was not a liability for purposes of section 752). Because
70
(...continued)
C.B. 131, and holding that a short sale created a partnership
liability within the meaning of sec. 752 because it created an
obligation to return the borrowed securities and holding that
incurring the liability increased the partnership’s basis in its
assets by the amount of cash received on the sale of the borrowed
securities); Salina Pship. LP v. Commissioner, T.C. Memo. 2000-
352 (concluding, on the basis of the plain and ordinary meaning
of the term “liability”, that the taxpayer had a legally
enforceable financial obligation to return the shares it borrowed
and close out the short sale). In a typical short sale
transaction, the short seller borrows shares from a broker and
sells them; the short seller must then buy an equivalent number
of the borrowed shares and return them to the broker by a future
date. See Zlotnick v. TIE Commcns., 836 F.2d 818, 820 (3d Cir.
1988). The short seller earns a profit on the transaction if the
securities decline in value because this allows the short seller
to make the covering purchase of the borrowed shares at a lower
price than the initial short sale. Id.
The potential liability under the short MLD option is
distinguishable from an obligation to close out a short sale
because Palm Canyon did not have a fixed, legally enforceable
financial obligation to make the premium interest payment when
the partnership assumed the short MLD option.
-47-
respondent contends that Palm Canyon’s liability under the short
MLD option was not what it appeared to be and given the parties’
arguments regarding the economic substance of the MLD
transaction,71 we must still address and decide whether the MLD
transaction had economic substance, regardless of how we decide
this issue. Consequently, we shall assume for purposes of the
analysis that AHI did not have to reduce its basis in its
partnership interest under section 752(b) as a result of Palm
Canyon’s assumption of the short MLD option, and we shall
evaluate the economic substance of the MLD transaction.
B. Section 1.752-6, Income Tax Regs.
On June 24, 2003, the Department of the Treasury promulgated
section 1.752-6T, Temporary Income Tax Regs., 68 Fed. Reg. 37416
(June 24, 2003), concerning a partnership’s assumption of certain
partner liabilities. On May 26, 2005, the temporary regulation
71
We also note that even if we were to conclude that the
obligation under the short option were a liability for sec. 752
purposes, sec. 752(a) would allow partners to increase their
bases in the partnership interests by their shares of the
liability that the partnership has assumed. See sec. 1.752-2,
Income Tax Regs. (addressing partner’s share of recourse
liabilities); sec. 1.752-3, Income Tax Regs. (addressing
partner’s share of nonrecourse liabilities). Notably,
application of sec. 1.752-6, Income Tax Regs., would not result
in a corresponding increase in the partner’s outside basis for
the increase in the partner’s share of partnership liabilities.
See, e.g., Klamath Strategic Inv. Fund, LLC v. United States, 440
F. Supp. 2d 608, 620 n.9 (E.D. Tex. 2006).
-48-
became final. T.D. 9207, 2005-1 C.B. 1344.72 Section 1.752-6,
Income Tax Regs., generally provides that if a partnership in a
section 721(a) transaction assumes a liability of a partner, as
defined in section 358(h)(3),73 that is not treated as a
liability under section 752(a) or (b),74 then the partner’s basis
in the partnership is reduced by the amount of the liability.
This regulation was intended to apply retroactively to
72
The regulations changed the definition of a “liability”
for purposes of sec. 752 and also defined the term “obligation”.
See sec. 1.752-1(a)(4), Income Tax Regs. Sec. 1.752-1(a)(4)(ii),
Income Tax Regs., states that an “obligation” is any fixed or
contingent obligation to make payment without regard to whether
the obligation is otherwise taken into account under the Internal
Revenue Code and lists certain obligations that fit within this
definition, including “obligations under derivative financial
instruments such as options, forward contracts, futures
contracts, and swaps.” An obligation is a liability for sec. 752
purposes if it meets the requirements of sec. 1.752-1(a)(4)(i),
Income Tax Regs. While Palm Canyon’s short MLD option likely
constitutes an obligation within the new definition in sec.
1.752-1(a)(4), Income Tax Regs., the regulation is inapplicable
in this case because it applies only to liabilities incurred or
assumed by a partnership on or after June 24, 2003. Sec. 1.752-
1(a)(4)(iv), Income Tax Regs. The IRS’ intended application of
sec. 1.752-1(a)(4), Income Tax Regs., contrasts with the
retroactive application of sec. 1.752-6, Income Tax Regs.,
discussed above.
73
Sec. 358(h)(3) provides that the term “liability” includes
any fixed or contingent obligation to make payment, without
regard to whether the obligation is otherwise taken into account
for purposes of the Code.
74
Before the 2005 regulations were finalized, the term
“liability” was not explicitly defined in sec. 752 or its
corresponding regulations.
-49-
assumptions of liabilities occurring after October 18, 1999, and
before June 24, 2003.75 Sec. 1.752-6(d), Income Tax Regs.
Application of section 1.752-6, Income Tax Regs., would
force AHI to reduce its basis in its Palm Canyon partnership
interest by the amount, on the date of assumption, of Palm
Canyon’s potential premium interest payment to Société Générale
under the short MLD option (but not below the adjusted value of
the partnership interest), because the short MLD option would
qualify as a contingent section 358(h)(3) liability assumed by
Palm Canyon. This reduction in the basis of AHI’s partnership
interest would effectively eliminate the tax benefit of the MLD
transaction because AHI would have no inflated basis in its Palm
Canyon partnership interest to transfer to the Canadian dollars
position under section 732(b).
The cases that have dealt with section 1.752-6, Income Tax
Regs., have focused on whether the regulation can properly be
applied retroactively. See Cemco Investors, LLC v. United
States, 515 F.3d 749, 752 (7th Cir. 2008) (regulation can be
applied retroactively); Murfam Farms, LLC v. United States, 88
Fed. Cl. 516 (2009) (regulation cannot be applied retroactively);
Maguire Partners-Master Invs., LLC v. United States, 103 AFTR 2d
763, at 776-778, 2009-1 USTC par. 50,215, at 87,448-87,450 (C.D.
75
Obligations assumed on or after June 24, 2003, that are
not described in sec. 1.752-1(a)(4)(i), Income Tax Regs., are
governed by sec. 1.752-7, Income Tax Regs.
-50-
Cal. 2009) (regulation can be applied retroactively); Stobie
Creek Invs., LLC v. United States, 82 Fed. Cl. at 667-671
(regulation cannot be applied retroactively); Sala v. United
States, 552 F. Supp. 2d 1167 (D. Colo. 2008) (regulation unlawful
and cannot be applied retroactively); Klamath Strategic Inv.
Fund, LLC v. United States, 440 F. Supp. 2d 608, 625-626 (E.D.
Tex. 2006) (retroactivity of regulation is ineffective).
Recognizing the uncertain state of the law and in the interests
of judicial economy, we shall not enter the fray at this time.
Instead, we shall assume that the regulation cannot be applied
retroactively and evaluate the economic substance of the MLD
transaction. See Klamath Strategic Inv. Fund, LLC v. United
States, 568 F.3d 537, 546 (5th Cir. 2009).
C. Economic Substance Doctrine
Respondent argues that, even if petitioner complied with the
literal terms of the Code as petitioner contends it did, the MLD
options lacked economic substance and the partnership was a sham
and should be disregarded.76 Petitioner concedes that Palm
76
Respondent also argues that we should disregard Palm
Canyon’s status as a partnership under the so-called partnership
antiabuse regulation, sec. 1.701-2, Income Tax Regs. Generally,
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 petitioner’s case on
other grounds, we need not decide whether the partnership
antiabuse regulation is valid or whether it applies to the
transaction in this case.
-51-
Canyon entered the MLD transaction in part because of its tax
benefits. However, petitioner points out that the fact that
favorable tax consequences were considered in entering the MLD
transaction does not compel disallowing those consequences. See
Frank Lyon Co. v. United States, 435 U.S. 561, 580 (1978); see
also ASA Investerings Pship. v. Commissioner, 201 F.3d 505, 513
(D.C. Cir. 2000) (“It is uniformly recognized that taxpayers are
entitled to structure their transactions in such a way as to
minimize tax.”), affg. T.C. Memo. 1998-305. Petitioner maintains
that all entities and transactions had bona fide economic
substance and business purpose and must be recognized for tax
purposes. We must analyze the MLD transaction and decide whether
the transaction had economic substance.
Under the economic substance doctrine, a court may disregard
a transaction for Federal income tax purposes if it finds that
the taxpayer did not enter into the transaction for a valid
business purpose but rather sought to claim tax benefits not
contemplated by a reasonable application of the language and
purpose of the Code or its regulations. See, e.g., Horn v.
Commissioner, 968 F.2d 1229, 1236 (D.C. Cir. 1992), revg. Fox v.
Commissioner, T.C. Memo. 1988-570. The origins of the economic
substance doctrine can be traced back to the Supreme Court’s
decision in Gregory v. Helvering, 293 U.S. 465 (1935). In
Gregory, the Court held that a reorganization complying with
-52-
formal statutory requirements should be disregarded for tax
purposes because the taxpayer’s creation and immediate
liquidation of a corporation was an impermissible attempt to
convert ordinary income into capital gain. Id. at 467. The
Court recognized the taxpayer’s right to minimize taxes through
legal means but stated that “the question for determination is
whether what was done, apart from the tax motive, was the thing
which the statute intended.” Id. at 469. The Supreme Court
concluded that “The whole undertaking, though conducted according
to the terms of [the statute], was in fact an elaborate and
devious form of conveyance masquerading as a corporate
reorganization, and nothing else.” Id. at 470.
In Frank Lyon Co. v. United States, supra at 583-584, the
Supreme Court upheld a sale-leaseback transaction over objections
that it lacked economic substance. In reaching its decision, the
Supreme Court explained the circumstances in which a transaction
should be respected for tax purposes and upheld the economic
substance of the transaction at issue:
where * * * 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 considerations, and is not
shaped solely by tax-avoidance features that have
meaningless labels attached, the Government should
honor the allocation of rights and duties effectuated
by the parties. * * * [Id.]
The standard articulated in Frank Lyon Co. has formed the
basis for the current application of the economic substance
-53-
doctrine. Many courts have interpreted the Frank Lyon Co.
language as creating an economic substance doctrine that examines
two areas or prongs: (1) Whether the transaction had economic
substance beyond tax benefits (objective prong), and (2) whether
the taxpayer has shown a nontax business purpose for entering the
disputed transaction (subjective prong). See, e.g., ACM Pship.
v. Commissioner, 157 F.3d 231, 247-248 (3d Cir. 1998), affg. in
part and revg. in part T.C. Memo. 1997-115; Bail Bonds by Marvin
Nelson, Inc. v. Commissioner, 820 F.2d 1543, 1549 (9th Cir.
1987), affg. T.C. Memo. 1986-23; Rice’s Toyota World, Inc. v.
Commissioner, 752 F.2d 89, 91-92 (4th Cir. 1985), affg. in part
and revg. in part 81 T.C. 184 (1983).
The Courts of Appeals are split as to the proper
articulation of the economic substance doctrine, particularly as
to the relative weights given to the objective and subjective
prongs in determining whether a transaction should be respected
for tax purposes. Some Courts of Appeals have applied an
analysis, often referred to as “disjunctive”, under which a
transaction is respected under the economic substance doctrine if
the court finds that the transaction has either a subjective
business purpose or objective economic substance. See Horn v.
Commissioner, supra at 1236; Rice’s Toyota World v. Commissioner,
supra at 91-92. Other Courts of Appeals have applied an
analysis, often referred to as “conjunctive”, where a transaction
-54-
will be respected under the economic substance doctrine only if
the court finds that the transaction satisfies both the
subjective and objective prongs. See Dow Chem. Co. v. United
States, 435 F.3d 594, 599 (6th Cir. 2006). A third group of
Courts of Appeals has rejected the notion of a “rigid two step
analysis” and elected to apply an approach under which the
subjective and objective prongs are collapsed into a single
inquiry. See Sacks v. Commissioner, 69 F.3d 982, 988 (9th Cir.
1995), revg. T.C. Memo. 1992-596.
For the reasons discussed below, we believe the MLD
transaction satisfies neither the subjective prong nor the
objective prong of the economic substance doctrine. Because the
MLD transaction fails both prongs of the economic substance
doctrine, our conclusion regarding the economic substance of the
MLD transaction is the same regardless of which analysis or
approach is applied.
We conduct our analysis by examining the MLD transaction
under both the subjective and objective prongs of the economic
substance doctrine. In conducting our analysis, we are mindful
that respondent’s determinations that the MLD transaction had no
economic substance and that the partnership was a sham and should
be disregarded are presumed correct, and petitioner has the
burden of proving that respondent’s determinations are in error.
-55-
1. Subjective Prong
To satisfy the subjective prong, petitioner must demonstrate
that Palm Canyon executed the MLD transaction for a business
purpose aside from tax benefits. See, e.g., Horn v.
Commissioner, supra at 1237. Petitioner argues that Palm
Canyon’s primary purpose for entering the MLD contracts was to
become familiar with foreign currency hedging opportunities. Mr.
Hamel testified that he wanted to pursue foreign investments that
would give the Hamel companies the ability to hedge against
fluctuations in foreign currencies because he was concerned about
the effect such fluctuations could have on potential contracts
between the Hamel companies and offshore vendors. Petitioner
contends that the Hamel companies anticipated a need for foreign
currency hedging if Mr. Hamel decided to expand the companies’
business overseas. The MLD transaction, petitioner argues, also
allowed the Hamel companies to evaluate the performance of Mr.
Brooks and to determine whether to pursue further trading
activitites with Mr. Brubaker. Additionally, petitioner asserts
that Palm Canyon entered into the MLD contracts to earn a real
economic profit and that Palm Canyon did earn a $6,600 profit on
the contracts.
A necessary element of the MLD transaction as carried out
was adding and then terminating CF Advisors’ status as a member
of Palm Canyon, the overall effect of which was to create AHI’s
-56-
basis in Palm Canyon that did not correspond with the economic
reality of AHI’s investment. Petitioner argues that CF Advisors’
membership allowed Mr. Brooks to gain trading authority over Palm
Canyon’s account and served as an incentive for Mr. Brooks to
perform on behalf of Palm Canyon.
The reasons petitioner offered for executing the MLD
transaction are not credible. Petitioner did not establish a
nontax business purpose for the MLD transaction. Accordingly, we
hold that the MLD transaction fails the subjective prong of the
economic substance doctrine. We base our holding on the
following facts.
a. The Hamel Companies’ Lack of a Current or
Foreseeable Need To Hedge Foreign Currencies
Before considering the MLD strategy, the Hamel companies had
no interest in foreign currency trading, and there is no evidence
that any of the Hamel companies had any experience in foreign
currency investments.
At the time of the MLD transaction, the Hamel companies had
no particular need to hedge foreign currencies.77 An option
contract can provide a hedge only if there is an existing risk to
77
According to Mr. Bessembinder, the MLD contracts, as
digital options, were also not appropriate for managing or
hedging the foreign exchange risks that would typically arise
when doing business in foreign markets. Generally, digital
options would not be used as a hedge in normal international
business operations, such as foreign sales, foreign production,
importing, and exporting.
-57-
be managed. Palm Canyon was not at risk on account of unexpected
movements in the Japanese yen per U.S. dollar exchange rate from
October to December 2001. None of the Hamel companies’
businesses had any contracts due in 2001 or 2002 that required
payments in any foreign currency. During 2001 Thighmaster had no
ownership interest, directly or indirectly, in any foreign entity
or bank account, and it paid no foreign taxes. Although Mr.
Hamel testified that he wanted to expand the Hamel companies’
foreign business operations, petitioner introduced no evidence,
aside from self-serving memoranda prepared on the eve of the MLD
transaction, of any definite plans to expand operations overseas,
and none of the evidence supports a finding that the Hamel
companies would need foreign currency hedging in the foreseeable
future. Moreover, such a need never materialized for any of the
Hamel companies before the termination of the Palm Canyon
partnership in 2001 and the cessation of foreign currency trading
altogether in 2003.
Furthermore, petitioner’s contention that Palm Canyon
entered into the MLD transaction to become familiar with foreign
currency investments is not credible. Mr. Hamel could have
become familiar with such investments by consulting with his
investment advisers. He did not need to pay Cantley & Sedacca
$325,000 and CF Advisors $20,000 to acquire such knowledge.
Similarly, we do not give any weight to Mr. Hamel’s supposed need
-58-
to assess Mr. Brooks’ investment performance, considering Mr.
Brooks’ temporary and limited role in Palm Canyon was already
planned before the MLD transaction was even executed. Mr.
Brooks’ involvement only facilitated the claiming of the tax loss
and had nothing to do with actually investing in foreign currency
or options.
b. Lack of Investigation Into the Foreign
Currency Aspects of the MLD Contracts and the
Participating Parties
None of the parties principally responsible for executing
the MLD transaction conducted a serious independent investigation
of the foreign currency aspects of the MLD contracts or the MLD
transaction participants. Neither Mr. Hamel nor Mr. Lamb sought
to verify independently the pricing of the options or the
possible outcomes under the MLD contracts with any person or
entity independent of the MLD strategy. None of the relevant
parties consulted with any of the banks the Hamel companies had
previously used for foreign investment advice. Mr. Lamb’s and
Mr. Barish’s investigation of Cantley & Sedacca and Mr. Ivsan was
limited, consisting of a cursory review of Mr. Ivsan’s
background. The parties performed little due diligence on Mr.
Brooks78 and conducted no meaningful investigation of the role of
Pryor Cashman or Mr. Kushner in promoting the MLD transaction.
78
Mr. Lamb exchanged several emails with Mr. Brooks
regarding Mr. Brooks’ background, and Mr. Wells provided Mr.
Barish a report regarding his inquiries on Mr. Brooks.
-59-
The primary focus of the pre-MLD transaction investigation
was to provide the window-dressing that would ensure that the tax
benefits had some prospect of being respected, that even if the
tax benefits were not respected no penalty would be imposed, and
that some of the people who would be involved in the MLD
transaction were who they purported to be. Mr. Lamb and Mr.
Barish reviewed the Bryan Cave opinion for its analysis of the
tax benefits. Both parties paid particularly close attention to
the discussion of the section 6662 penalty in the Bryan Cave
opinion and Pryor Cashman’s draft tax opinion. Mr. Lamb and Mr.
Barish met with Pryor Cashman to discuss the tax aspects of the
MLD transaction and Pryor Cashman’s preparation of the tax
opinion. The focus of the parties on the tax treatment of the
MLD transaction, while ignoring all other aspects of the foreign
currency investment, demonstrates that the real purpose of the
MLD transaction was tax avoidance.
c. Lack of Rational Economic Behavior in Pricing
the MLD Contracts
Respondent’s experts, Mr. Bessembinder and Mr. Murphy, both
concluded that the MLD options were overpriced and thus did not
reflect reasonable market prices or rational economic behavior.79
79
Petitioner did not present any expert testimony and did
not convince us on cross-examination that respondent’s experts
were not credible. Consequently, we accept the conclusions of
respondent’s experts and do not spend time summarizing the
factual bases of their opinions.
-60-
Using the Black-Scholes pricing model,80 both experts found that
the value of Palm Canyon’s long MLD option was approximately $1.6
million, while the value of Palm Canyon’s short MLD option was
approximately $1.594 million. Both Palm Canyon and Société
Générale thus purportedly obligated themselves to pay premiums
that were approximately $3.4 million more than their respective
MLD option’s market price. Because the premium purportedly
payable for the long MLD option essentially equaled the amount of
ordinary loss the MLD transaction produced, Palm Canyon had an
incentive to inflate the long MLD option’s premium to generate a
greater loss. By similarly overstating the price of the short
MLD option, Palm Canyon achieved its desired loss while
mimimizing the net premium payment to Société Générale; that net
premium payment was the extent of Palm Canyon’s economic outlay
in executing the MLD transaction (aside from fees). Respondent’s
experts also determined that Palm Canyon overpaid by nearly
$30,000 with respect to the net option premium. Additionally,
both experts concluded that the $61,600 termination payment Palm
Canyon received was significantly less than the difference
80
The Black-Scholes option pricing model is the industry
standard for pricing foreign currency option trades. Under the
Black-Scholes model, the premium on a standard currency option is
determined by six factors, including the spot market exchange
rate at the time the option is valued, interest rates on each of
the two currencies, the time until the option expiration date,
the option strike price, and the volatility of the spot market
exchange rate.
-61-
between the then market values of the MLD options, with Mr.
Murphy estimating $90,000 as a more appropriate amount.
Petitioner introduced no expert testimony on the economics
of the MLD transaction, and petitioner offers no explanation why
the long and short MLD options were overpriced or why Palm Canyon
received a termination payment below market value. Petitioner
argues only that, unbeknownst to Mr. Brooks or any other relevant
party, Société Générale overstated Palm Canyon’s net premium so
that it could pay a hidden $20,500 fee to Deutsche Banc Alex.
Brown. While we will not speculate about the financial
arrangements among Palm Canyon, Société Générale, and Deutsche
Banc Alex. Brown with respect to the MLD transaction in the
absence of credible evidence regarding the arrangement, we cannot
conclude on the record that Mr. Brooks and others associated with
Palm Canyon did not know about the Deutsche Banc Alex. Brown fee.
Mr. Brooks and Mr. Ivsan determined the desired premium payments
for the long and short MLD options in formulating the terms of
the MLD contracts. Mr. Brooks testified that, in pricing the
long and short MLD options, he provided Palm Canyon’s desired
premium payment to Société Générale, and Société Générale, in
response, issued a strike price that Mr. Brooks concluded was
reasonable under the Black-Scholes option pricing model. Because
Société Générale issued a strike price in response to information
provided by Mr. Brooks, the record does not support a conclusion
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that Société Générale secretly overstated Palm Canyon’s net
premium payment.
Palm Canyon’s overpayment of the net premium, coupled with
the inflation of the premiums themselves and Palm Canyon’s
willingness to accept a termination payment below the MLD
options’ then market value, reflects Palm Canyon’s disregard for
the economics of the MLD contracts and evidences the tax
motivations behind the MLD transaction. Palm Canyon’s pricing of
the MLD options was not reasonable under commercial practices in
the option trading industry and demonstrates Palm Canyon’s lack
of profit motive in executing the MLD contracts.
d. CF Advisors’ Membership in Palm Canyon
Solely To Facilitate the Tax Benefit
Contemplated by the MLD Transaction
CF Advisors became a member of Palm Canyon solely to exploit
the partnership tax rules. CF Advisors’ membership in Palm
Canyon caused Palm Canyon to become a partnership for tax
purposes, which allowed AHI to claim an inflated basis in its
Palm Canyon partnership interest. Mr. Brooks entered into such
an arrangement (as a partner or member), ostensibly as a foreign
currency investment adviser, in each of the 150 MLD transactions
that he carried out for his MLD strategy clients in 2001. In its
role as foreign currency trader for Palm Canyon, CF Advisors,
through Mr. Brooks, purportedly had discretion to make whatever
foreign currency trades he deemed would garner a profit.
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However, Mr. Brooks simply carried out the trades necessary to
create the tax benefit contemplated by the MLD strategy. The
terms of the MLD contracts Mr. Brooks entered into had been
predetermined to ensure the necessary ordinary loss would be
generated to offset the Hamels’ estimated 2001 taxable income.
The other foreign currency trades that Mr. Brooks made in 2001
for Palm Canyon were significantly smaller in amount and, we
think, were an obvious attempt to legitimize his status as a
foreign currency trader for Palm Canyon.81
Shortly after CF Advisors joined Palm Canyon, AHI purchased
CF Advisors’ partnership interest to trigger liquidation of the
Palm Canyon partnership and deemed distribution of its assets
before the close of Thighmaster’s 2001 tax year. The liquidation
provided the occasion for the transfer of AHI’s inflated basis in
its Palm Canyon partnership interest to the Canadian dollars
position and allowed AHI to claim an ordinary loss on its
subsequent disposition.82
Petitioner argues that Palm Canyon was a special purpose
venture that was formed to conduct a venture of limited duration.
Petitioner suggests that the Hamel companies wanted experience in
81
Our conclusion is reinforced by the fact that Mr. Brooks
placed similar minor foreign currency trades for each of his 150
MLD strategy clients.
82
Mr. Brooks terminated his partnership or membership
interest before Dec. 31, 2001, in each of the 150 MLD
transactions in which he participated.
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foreign currency trading, and Mr. Lamb believed that the MLD
contracts satisfied this purpose. Petitioner claims that the
principal initial activity was a discrete transaction that would
last only 60 days, and Palm Canyon as an entity was designed
primarily for that initial venture.
Petitioner also contends that Palm Canyon was validly
formed, had at least two legitimate business purposes, and had
substantial economic effect. Petitioner claims that limited
liability was the first business reason for establishing Palm
Canyon as an entity. Petitioner also argues that Mr. Hamel’s
intention was that the foreign currency trading activities were
part of the Hamel companies. Petitioner states that the historic
model for the Hamel companies was that every separate activity
was placed within its own qualified subchapter S subsidiary
corporation, but because a subsidiary could not have an unrelated
party as a shareholder, Palm Canyon was needed to allow
Mr. Brooks’ ownership. Petitioner suggests this was the second
reason for creating Palm Canyon.
Although the goal of achieving limited liability through
establishing a limited liability company might have been a valid
business purpose for establishing Palm Canyon, we question the
purpose of adding and then terminating CF Advisors as a partner.
Although petitioner and Mr. Brooks claim that CF Advisors became
a member in Palm Canyon to allow Mr. Brooks to gain trading
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authority over Palm Canyon’s Deutsche Banc Alex. Brown account,
petitioner did not introduce any credible evidence to explain why
CF Advisors needed to become a member in Palm Canyon to gain such
authority. Before CF Advisors’ membership in Palm Canyon, Mr.
Hamel granted Mr. Brooks trading authority with respect to Palm
Canyon’s Deutsche Banc Alex. Brown account, and pursuant to this
authority, Mr. Brooks executed the MLD contracts before the Palm
Canyon partnership was created.
Petitioner also suggests that CF Advisors became a member of
Palm Canyon to encourage Mr. Brooks to perform well on Palm
Canyon’s behalf and that Mr. Brooks’ motive in joining the
partnership was to make money. That explanation, however, cannot
be reconciled with the prearranged buyout of CF Advisors; Cantley
& Sedacca prepared documents pertaining to CF Advisors’
termination from Palm Canyon at the outset of the MLD transaction
(which Mr. Hamel signed on or about October 9, 2001), before CF
Advisors even became a member in Palm Canyon. The record
contains Mr. Lamb’s notes of his September 26, 2001, meeting with
Mr. Kushner, in which Mr. Ivsan and Mr. Barish participated by
telephone. In paragraph 2 Mr. Lamb wrote:
2. Why is Clarion [Capital] bought out? Entirely up
to the client-–reason for termination--not comfortable
with derivatives area as investment strategy. Also
clients that have not made money not wanting to pay
quarterly management fees. Client can stay on. Can
keep Clarion as a partner in LLC. Termination of
partnership causes outside basis to be attached to
assets inside partnership. Transfer of partnership
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interest to a third party could also accomplish the
same thing. Termination of the partnership or
transfer of partnership interest is the only way to
get the loss needed.
At trial Mr. Lamb also testified that Mr. Brooks had to be
terminated as a member of Palm Canyon to ensure “that the tax
transaction would work correctly.”
The advance preparation of CF Advisors buyout documents as
part of the same packet as other transaction documents and
advance discussions about potential business reasons for buying
out CF Advisors’ interest in Palm Canyon show that all steps in
the MLD transaction were prearranged and that the parties had no
legitimate intention of pursuing foreign currency trading and
were concerned exclusively with producing the contemplated tax
benefit. We also find significant the fact that CF Advisors sold
its Palm Canyon interest without any negotiations; no
negotiations took place in any of Mr. Brooks’ 150 similar
transactions.
We conclude that the only purpose behind CF Advisors’
participation in the MLD transaction was to further a carefully
orchestrated and prearranged plan to manufacture a $5 million
ordinary loss. CF Advisors’ involvement as a foreign currency
trader was mere window dressing for its role in assuring the
recognition of this tax benefit.
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e. The MLD Strategy Was a Tax Shelter To Offset
Mr. Hamel’s Taxable Income
Mr. Brooks, Mr. Brubaker, and Mr. Ivsan developed the MLD
strategy as a tax avoidance scheme and not to create an
opportunity to hedge foreign currencies or achieve a pretax
profit. Mr. Brooks knew the MLD strategy was a “tax advantage”
or “tax motivated” transaction. Cantley & Sedacca marketed the
MLD strategy as a tax shelter to accountants and financial
advisers nationwide and sold it to approximately 150 clients.
Cantley & Sedacca, through Mr. Ivsan, presented the MLD
strategy to Mr. Lamb to reduce the Hamels’ 2001 Federal income
tax liability.83 For the 2000 tax year the Hamels reported
approximately $8.6 million in taxable income and paid nearly $3.4
million in Federal income tax, and estimates in June 2001 showed
that the Hamels expected taxable income between $7 and $9 million
in 2001. Cantley & Sedacca designed the MLD transaction to
reduce or eliminate the Hamels’ projected income by producing
(through Palm Canyon, AHI, and Thighmaster) a $5 million ordinary
loss. Because of the MLD transaction, the Hamels reduced their
2001 taxable income to zero and avoided approximately $1.5
million in 2001 Federal income tax. We find that Mr. Hamel
executed the MLD transaction for the sole purpose of sheltering
83
Mr. Lamb had been looking for a means to reduce the
Hamels’ tax liability as early as August 2001, when he met with
the Skyline Group to discuss “high end tax products for big
losses”.
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his income from tax, and we reject any testimony to the contrary
as not credible. We conclude that Palm Canyon entered into the
MLD transaction solely to reduce the Hamels’ 2001 Federal income
tax liability.
2. Objective Prong
To satisfy the objective prong, petitioner must demonstrate
that the MLD transaction had a reasonable prospect of earning a
profit. See, e.g., Horn v. Commissioner, 968 F.2d at 1237.
Petitioner contends that Palm Canyon had a substantial
opportunity to earn a profit on the MLD options. As discussed
above, Palm Canyon had three possible outcomes following the
expiration of the MLD contracts: (1) If both MLD options were
out of the money, Palm Canyon would lose its $55,000 net
investment; (2) if both MLD options were in the money, Palm
Canyon would earn a maximum net profit of $33,000; or (3) if the
long MLD option were in the money and the short MLD option were
out of the money, Palm Canyon would hit the sweet spot and net
$7,945,000. According to petitioner, Palm Canyon had a
significant opportunity to earn a $33,000 profit if both MLD
contracts were in the money and had a chance of receiving a high
profit from hitting the sweet spot. Petitioner claims that the
MLD contracts generated an actual economic profit of $6,600,
which equaled a 12-percent return on a 60-day investment,
and that Palm Canyon’s subsequent 2001 foreign currency trading
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activities generated an additional economic profit of $2,076.
Despite petitioner’s claims that Palm Canyon could have earned a
significant profit in two of the three possible outcomes, we find
that taking transaction fees into account, Palm Canyon did not
have a reasonable expectation of earning a profit on the MLD
contracts. Accordingly, we hold that the MLD transaction fails
the objective prong of the economic substance doctrine test. We
base our holding on the following factors.
a. Palm Canyon’s Lack of a Realistic Chance of
Hitting the Sweet Spot
Palm Canyon’s chances of hitting the sweet spot were remote.
Mr. Lamb acknowledged that the likelihood of hitting the sweet
spot was small. Mr. Brooks stated that there was only a 1.3-
percent chance of Palm Canyon’s hitting the sweet spot, and none
of his 150 clients involved in an MLD strategy transaction
received a sweet spot payout.84 Respondent’s experts concluded,
using the Black-Scholes pricing model, that the chance of hitting
the sweet spot was between 0.11 and 0.13 percent.
84
Mr. Brooks testified that the sweet spot was not something
he considered but that it would have been “wonderful” if the MLD
contracts had hit the sweet spot. Mr. Brooks also stated that he
terminated the Palm Canyon MLD contracts before maturity, despite
the Japanese yen per U.S. dollar exchange rate’s relative
proximity to the sweet spot, because he feared the market’s
volatility and wanted to lock in a profit. We reject Mr. Brooks’
testimony regarding his reason for terminating the MLD contracts
before maturity as not credible.
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From a practical standpoint, Palm Canyon’s chances of
hitting the sweet spot were zero under the terms of the MLD
contracts governing the determination of the spot market exchange
rate. The market practices at the time would have allowed
Société Générale, as the calculation agent and determinant of the
spot market exchange rate,85 to assure that Palm Canyon would not
hit the sweet spot.86 As explained by respondent’s experts, if
Société Générale had followed industry market practices in
determining the spot market exchange rate, Société Générale would
have asked three or four other banks or brokers to quote a “bid”
price at which they would buy a currency and an “ask” price at
which they would sell a currency. In response Société Générale
would have received a range of prices; generally, the bid and ask
spread was 3 to 5 pips. Société Générale could then have chosen
any price within that range.87 Because the strike prices in the
MLD contracts were only 2 pips apart,88 Société Générale could
85
At the time of the MLD contracts it was common industry
practice for the bank issuing the option to also serve as the
calculation agent.
86
We came to a similar conclusion on analogous facts in a
deficiency case, New Phoenix Sunrise Corp. & Subs. v.
Commissioner, 132 T.C. ___, ___ (2009) (slip op. at 27-29)
(relying on the testimony of the same expert).
87
Today, an independent agency sets the fixing rate for each
currency at 10 a.m. on the basis of an electronic average of
prices.
88
In order for Palm Canyon to hit the sweet spot under the
(continued...)
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assure that Palm Canyon would not hit the sweet spot by choosing
a price outside the specified range. According to respondent’s
experts, nothing prevented Société Générale from selecting an
exchange rate outside the sweet spot. Both experts concluded
that because of Société Générale’s incentive to avoid payment on
the long MLD option and its flexibility in selecting the spot
market exchange rate, it was impossible for Palm Canyon to hit
the sweet spot. Had Palm Canyon had a legitimate profit motive
in pursuing the MLD transaction, it could have attempted to avoid
this disadvantage by trying to negotiate for the designation of
an independent third party as the calculation agent or for a
provision to determine the spot market exchange rate in an
objective manner.
b. Nullification of Any Potential Profit by Palm
Canyon’s MLD Transaction Fees
Disregarding the potential for the $7,945,000 sweet spot
payout, petitioner maintains that the MLD options had an
opportunity of producing a $33,000 profit if both options were in
the money. However, if we account for the fees paid by Palm
Canyon in executing the MLD transaction, $325,000 to Cantley &
88
(...continued)
MLD contracts, the spot market exchange rate would have to be
equal to or greater than 124.65 but less than 124.67, a 2-pip
spread. The 2-pip spread in the MLD contracts was unusually
close. Respondent’s expert Mr. Murphy testified that he had
never priced an option 2 pips apart in his 20-plus years of
trading foreign currencies. In all of the 150 MLD transactions
Mr. Brooks participated in, the sweet spot was 2 pips apart.
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Sedacca and $20,000 to CF Advisors, Palm Canyon could not have
earned a profit.
Petitioner argues that the fees paid to Cantley & Sedacca
and CF Advisors cannot be charged as transaction costs in
determining the profitability of the MLD transaction. Petitioner
asserts that the $20,000 paid to CF Advisors was a flat annual
fee that covered not only the MLD contracts but also Mr. Brooks’
2001 foreign currency trading. Additionally, petitioner contends
that the $325,000 fee paid to Cantley & Sedacca must be
considered independent of any analysis pertaining to the
potential profitability of the MLD contracts because Palm Canyon
paid the fee to determine the appropriate tax treatment of the
transaction. Because Palm Canyon planned to claim a sizable tax
benefit as a result of the MLD transaction, petitioner asserts it
would have been irresponsible to claim such a large tax benefit
without assuring the entitlement to the benefit. Petitioner
argues that respondent cannot use the costs incurred to verify
the entitlement to the tax benefit to establish the
unprofitability of the MLD contracts.
Petitioner’s arguments are unavailing. The fees Palm Canyon
paid to Cantley & Sedacca and CF Advisors were for executing the
MLD transaction. We cannot ignore these fees in determining the
profitability of the MLD transaction.
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Palm Canyon’s $20,000 payment to CF Advisors was not a flat,
annual foreign currency adviser fee. The $20,000 payment went to
Mr. Brooks for his involvement in the MLD transaction, including
his execution of the MLD contracts, his role in CF Advisors’
membership and termination in Palm Canyon, and his attempt to
legitimize Palm Canyon’s investment activities through several
smaller foreign currency trades.
Similarly, the $325,000 Palm Canyon paid to Cantley &
Sedacca was for Cantley & Sedacca’s extensive role in executing
the MLD transaction. While petitioner attempts to create a
distinction between economic transaction fees and fees paid to
verify the tax treatment of an item, the record establishes that
Palm Canyon did not pay Cantley & Sedacca just to verify the tax
aspects of the MLD transaction. Cantley & Sedacca introduced the
MLD strategy to Mr. Hamel, structured the MLD transaction, and
carried out each of the steps necessary to achieve the desired
tax benefit. The extent of services provided beyond the
verification of tax benefits is evidenced by Cantley & Sedacca’s
outsourcing the task of drafting a tax opinion to Pryor Cashman,
to which it paid only $50,000 of its $325,000 fee.
Moreover, we reject petitioner’s argument that the costs
incurred to verify the tax aspects of the MLD transaction are not
attributable to the MLD transaction when examining its
profitability. Petitioner offers no authority to support this
-74-
argument. Courts examining the profitability of a transaction in
an economic substance analysis generally consider the fees paid
to promoters, facilitators, and tax advisers associated with the
questioned transaction. See, e.g., Jade Trading, LLC v. United
States, 80 Fed. Cl. at 49-50. Furthermore, if petitioner’s
argument accomplishes anything, it reinforces Palm Canyon’s tax
avoidance purpose for entering the MLD transaction, because no
rational investor would enter a transaction, absent the tax
motivation, if the cost of verifying the tax aspects of the
transaction grossly exceeded the expected economic profit.
We hold that the $20,000 paid to CF Advisors and the
$325,000 paid to Cantley & Sedacca must be included in our
analysis of the profitability of the MLD transaction.
Accordingly, we conclude that Palm Canyon did not have a
reasonable opportunity to earn a pretax profit on the MLD
transaction because even if both options were in the money and
Palm Canyon earned a $33,000 profit, Palm Canyon would still have
lost approximately $312,000 on the transaction after taking into
account the transaction fees.
D. Conclusion
Petitioner has failed to prove that the MLD transaction,
including the steps of creating the Palm Canyon partnership and
terminating it approximately 2 months later, satisfied either the
subjective prong or the objective prong of the economic substance
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doctrine. Petitioner has not introduced credible evidence to
establish that Palm Canyon had a legitimate nontax business
purpose for entering into the MLD transaction, and the
transaction did not have a reasonable prospect of achieving a
pretax profit. A review of the MLD transaction reveals a
prearranged set of transactions that were not imbued with any
meaningful economic substance independent of tax benefits. See
Horn v. Commissioner, 968 F.2d at 1236; see also Sacks v.
Commissioner, 69 F.3d at 988. Inasmuch as the MLD transactions
satisfied neither the subjective nor the objective prong of the
economic substance doctrine, we conclude that the MLD contracts
and creation and termination of the Palm Canyon partnership did
not constitute genuine multiparty transactions with economic
substance that were compelled or encouraged by business or
regulatory realities, that were imbued with tax-independent
considerations, and that were not shaped by tax avoidance
features with meaningless labels. Accordingly, we sustain
respondent’s adjustments to Palm Canyon’s return.
V. Section 6662 Accuracy-Related Penalty
In the FPAA respondent determined that a 40-percent gross
valuation misstatement penalty under section 6662(a), (b)(3),
(e), and (h) applies. On brief respondent argues that AHI’s
purported $5 million contribution of the long MLD option should
have been either zero or alternatively, $55,000. Respondent also
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suggests that AHI overstated its basis in its partnership
interest and the basis in the Canadian dollars position
distributed in the purported liquidation of Palm Canyon by more
than 400 percent of the correct amount.
In the alternative, respondent determined a 20-percent
accuracy-related penalty under section 6662(a) on the portion of
any underpayment resulting from his adjustments to items on Palm
Canyon’s return attributable to negligence or disregard of rules
and regulations or resulting in a substantial understatement of
income tax.89 Sec. 6662(a) and (b)(1) and (2).
A. Preliminary Matters
1. Jurisdiction
The applicability of any penalty, addition to tax, or
additional amount that relates to an adjustment to a partnership
item must be determined at the partnership level. Sec. 6226(f);
sec. 301.6221-1(c), Proced. & Admin. Regs.; see also New
Millennium Trading, L.L.C. v. Commissioner, 131 T.C. ___ (2008)
(upholding the validity of section 301.6221-1T(c) and (d),
Temporary Proced. & Admin. Regs., 64 Fed. Reg. 3838 (Jan. 26,
1999)); sec. 301.6221-1T(c), Temporary Proced. & Admin. Regs.,
89
The Commissioner may not stack or compound alternative
components of the sec. 6662 penalty to determine a penalty
greater than the maximum penalty of 20 percent on any given
portion of an underpayment, or 40 percent if such portion is
attributable to a gross valuation misstatement. Sec. 1.6662-
2(c), Income Tax Regs.
-77-
supra (providing that any penalty, addition to tax, or additional
amount that relates to an adjustment of partnership item, is
determined at the partnership level). Partnership-level
determinations include all the legal and factual determinations
that form the basis of the determination of any penalty, addition
to tax, or additional amount. Sec. 301.6221-1(c), Proced. &
Admin. Regs.
Partner-level defenses to any penalty, addition to tax, or
additional amount that relates to an adjustment to a partnership
item may not be asserted in the partnership-level proceeding.
Sec. 301.6221-1(c) and (d), Proced. & Admin. Regs.; sec.
301.6221-1T(c) and (d), Temporary Proced. & Admin. Regs., supra;
see also New Millennium Trading, L.L.C. v. Commissioner, supra at
___ (slip op. at 19-23). Individual partners may raise partner-
level defenses through separate refund actions following
assessment and payment of the penalty. Sec. 301.6221-1(c) and
(d), Proced. & Admin. Regs. Partner-level defenses are limited
to those that are personal to the partner or depend on the
partner’s separate return and cannot be determined at the
partnership level. Id. For example, a partner may raise a
personal reasonable cause defense under section 6664(c)(1). Id.
All other defenses are partnership-level defenses. Defenses of
AHI as Palm Canyon’s managing member and TMP are partnership-
level defenses. See, e.g., Whitehouse Hotel Ltd. Pship. v.
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Commissioner, 131 T.C. 112, 173 (2008); Santa Monica Pictures,
LLC v. Commissioner, T.C. Memo. 2005-104.
2. Burden of Production
Under section 7491(c), the Commissioner has 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. However, section 7491(c) does not
shift the burden of proof, which remains on the taxpayer. Higbee
v. Commissioner, 116 T.C. 438, 446-447 (2001).
Petitioner incorrectly implies that the burden of proof
falls on respondent with respect to the section 6662 accuracy-
related penalty. Petitioner does not, however, provide any
support for its position. It is well established that a taxpayer
has the burden of proving that the Commissioner’s determinations
regarding the section 6662 accuracy-related penalty are
incorrect. Id. What is not so clear, however, is whether
section 7491(c) imposes the initial burden of production
regarding the section 6662 accuracy-related penalty on the
Commissioner when the taxpayer is an entity that has petitioned
this Court under section 6226. By its terms, section 7491(c)
applies only to the liability of “any individual” for
penalties.90 Thus, in this proceeding section 7491(c) is
90
In contrast, sec. 7491(a), which provides the general rule
for shifting the burden of proof to the Commissioner in certain
(continued...)
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arguably inapplicable because petitioner is not an individual.
See Santa Monica Pictures, LLC v. Commissioner, supra; Long Term
Capital Holdings v. United States, 330 F. Supp. 2d 122 (D. Conn.
2004), affd. 150 Fed. Appx. 40 (2d Cir. 2005).
We need not resolve this uncertainty; even if we assume that
respondent has the initial burden of production under section
7491(c) with respect to the section 6662 accuracy-related
penalty, we are satisfied that respondent has carried any such
burden with respect to the appropriateness of applying the
accuracy-related penalty. Consequently, petitioner must come
forward with evidence sufficient to persuade us that respondent's
penalty determinations are incorrect. Higbee v. Commissioner,
supra at 447.
Respondent has made several alternative determinations with
respect to the accuracy-related penalty. We address each of them
below.
B. Gross Valuation Misstatement
Section 6662(a) and (b)(3) imposes a 20-percent
accuracy-related penalty on the portion of an underpayment
attributable to any substantial valuation misstatement. A
substantial valuation misstatement exists if the value of any
property, or the adjusted basis of any property, claimed by the
90
(...continued)
circumstances, applies in ascertaining the liability of a
“taxpayer”.
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taxpayer is 200 percent or more of the amount determined to be
the correct amount of such valuation or adjusted basis. Sec.
6662(e)(1). The penalty imposed by section 6662(a) increases
from 20 to 40 percent if the underpayment is attributable to a
gross valuation misstatement. Sec. 6662(h). A gross valuation
misstatement occurs if the value of any property, or the adjusted
basis of any property, claimed by the taxpayer is 400 percent or
more of the amount determined to be the correct amount of such
valuation or adjusted basis. Sec. 6662(h)(2)(A).
We have concluded that the MLD transaction, including the
MLD contracts and the creation and termination of the Palm Canyon
partnership, lacked economic substance. Our conclusion, as it
pertains to the admission of CF Advisors as a Palm Canyon member
and the purchase of its partnership interest, which in turn
resulted in creation and termination of the Palm Canyon
partnership, effectively disregards the Palm Canyon partnership
for Federal income tax purposes. In Petaluma FX Partners, LLC v.
Commissioner, 131 T.C. at 100, we held that if a partnership is
disregarded for tax purposes, the correct outside
bases of the purported partners is zero.91 In Petaluma we also
91
Although we have held that generally the basis in a
partner’s partnership interest is not a partnership item that
must be determined at a partnership-level proceeding, see
Domulewicz v. Commissioner, 129 T.C. 11, 20-21 (2007), affd. and
remanded on other grounds sub nom. Desmet v. Commissioner, 581
F.3d 297 (6th Cir. 2009), we have also held that if a partnership
(continued...)
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held that if a partnership is disregarded for tax purposes, the
gross valuation misstatement penalty applies.92 Id. at 105.
Petitioner argues that the gross valuation misstatement
penalty does not apply because the tax deficiency resulting from
respondent’s adjustments is attributable to the lack of economic
substance of the MLD contracts and not to a valuation
misstatement. In support of its argument, petitioner primarily
91
(...continued)
is disregarded for Federal income tax purposes, the Court has
jurisdiction in a partnership-level proceeding to determine that
there can be no outside bases in such partnership, see Petaluma
FX Partners, LLC v. Commissioner, 131 T.C. 84, 100 (2008).
92
The majority of the Courts of Appeals that have ruled on
the application of the valuation misstatement penalty in the
context of a disregarded transaction (under both sec. 6662 and
its predecessor statute, sec. 6659) follows a similar approach.
See, e.g., Merino v. Commissioner, 196 F.3d 147, 155 (3d Cir.
1999) (“whenever a taxpayer knowingly invests in a tax avoidance
entity which the taxpayer should know has no economic substance,
the valuation overstatement penalty is applied as a matter of
course”), affg. T.C. Memo. 1997-385; Zfass v. Commissioner, 118
F.3d 184, 191 (4th Cir. 1997) (the valuation overstatement
penalty applied because the value overstatement was a primary
reason for the disallowance of the claimed tax benefits), affg.
T.C. Memo. 1996-167; Illes v. Commissioner, 982 F.2d 163, 167
(6th Cir. 1992) (the entire artifice of the tax shelter at issue
was constructed on the foundation of the overvaluation of its
assets), affg. T.C. Memo. 1991-449; Gilman v. Commissioner, 933
F.2d 143, 151 (2d Cir. 1991) (“The lack of economic substance was
due in part to the overvaluation, and thus the underpayment was
attributable to the valuation overstatement”), affg. T.C. Memo.
1989-684 as supplemented by T.C. Memo. 1990-205; Massengill v.
Commissioner, 876 F.2d 616, 619-620 (8th Cir. 1989) (“When an
underpayment stems from disallowed depreciation deductions or
investment credit due to lack of economic substance, the
deficiency is attributable to overstatement of value”), affg.
T.C. Memo. 1988-427; see also Santa Monica Pictures, LLC v.
Commissioner, T.C. Memo. 2005-104; Jade Trading, LLC v. United
States, 80 Fed. Cl. 11, 54 (2007).
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relies on Gainer v. Commissioner, 893 F.2d 225, 228 (9th Cir.
1990), affg. T.C. Memo. 1988-416. In Gainer, the tax deficiency
at issue resulted from the taxpayer’s failure to place an asset
in service during the relevant tax year and not from the
overvaluation of the property itself. Id. Because the
Commissioner disallowed the taxpayer’s claimed tax benefits on
grounds independent from any valuation overstatement, the Court
of Appeals for the Ninth Circuit concluded that the resulting
underpayment of tax was not attributable to a valuation
misstatement. Id. at 228-229. Petitioner argues that AHI’s
overstated basis in its Palm Canyon partnership interest does not
constitute a valuation misstatement because it was not
attributable to the valuation of any asset or position.
The facts in Gainer v. Commissioner, supra, are
distinguishable from the present set of facts. In Gainer, the
court disallowed the claimed tax benefits on grounds independent
from any alleged valuation misstatement. In contrast, AHI’s
claimed inflated basis in its Palm Canyon partnership interest
directly contributed to our decision to disregard the MLD
transaction on economic substance grounds. Achieving an inflated
basis in AHI’s Palm Canyon partnership interest was the primary
objective of the tax avoidance scheme that Mr. Hamel pursued.
The substantial tax loss on the disposition of the Canadian
dollars position depended directly on AHI’s inflated basis in its
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Palm Canyon partnership interest. The $5 million overstatement
of basis claimed by AHI represented the predetermined amount Mr.
Hamel needed to negate his 2001 Federal income tax liability.
Accordingly, the underpayment resulting from our decision to
disregard the MLD transaction as a whole is directly attributable
to the overstatement of AHI’s adjusted basis in its Palm Canyon
partnership interest.
Petitioner also cites Klamath Strategic Inv. Fund, LLC v.
United States, 472 F. Supp. 2d 885 (E.D. Tex. 2007), affd. in
part, vacated in part and remanded 568 F.3d 537 (5th Cir. 2009),
in which the U.S. District Court for the Eastern District of
Texas held that the valuation misstatement penalty does not apply
when a transaction is disregarded for lack of economic substance,
finding that the resulting underpayment of tax is attributable to
the disregard of the transaction and not to a valuation
misstatement. The District Court cited Heasley v. Commissioner,
902 F.2d 380, 383 (5th Cir. 1990), revg. T.C. Memo. 1988-408, as
controlling. See Klamath Strategic Inv. Fund, LLC v. United
States, 472 F. Supp. 2d at 900. In Heasley v. Commissioner,
supra at 383, another case on which petitioner attempts to rely,
the Court of Appeals for the Fifth Circuit indicated that the
Commissioner can impose a valuation misstatement penalty only
where the underpayment is attributable to a valuation
overstatement and not where the deficiency is attributable to an
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improper deduction or credit. In Heasley, the Court of Appeals
for the Fifth Circuit noted that “Whenever the I.R.S. totally
disallows a deduction or credit, the I.R.S. may not penalize the
taxpayer for a valuation overstatement included in that deduction
or credit.” Id.; see also Keller v. Commissioner, 556 F.3d 1056,
1060-1061 (9th Cir. 2009), affg. in part and revg. in part T.C.
Memo. 2006-131.
We believe that we are not constrained by the precedents of
the Courts of Appeals for the Ninth or Fifth Circuit for the
following reasons. Under Golsen v. Commissioner, 54 T.C. 742,
757 (1970), affd. 445 F.2d 985 (10th Cir. 1971), we follow any
decisions of the U.S. Court of Appeals to which appeal lies that
are squarely on point. Section 7482(b)(1)(E) provides that in
the case of a petition filed under section 6226, a decision by
this Court may be reviewed by the U.S. Court of Appeals for the
circuit in which the partnership has its principal place of
business. Appellate venue under section 7482 is determined as of
the time the petition seeking redetermination of tax liability
was filed with the Court. Sec. 7482(b)(1) (flush language). If
for any reason no subparagraph of section 7482(b)(1) applies,
then the decision may be reviewed by the Court of Appeals for the
District of Columbia Circuit. Id. The Secretary and the
taxpayer may also elect to stipulate in writing the U.S. Court of
Appeals to which appeal lies. Sec. 7482(b)(2).
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Although both parties stated in their opening briefs that
this case is appealable to the Court of Appeals for the Ninth
Circuit, respondent has reversed course and argues in his reply
brief that venue for an appeal is the Court of Appeals for the
District of Columbia Circuit. We agree that venue for an appeal
is the Court of Appeals for the District of Columbia Circuit.
Palm Canyon’s partnership status was terminated for Federal tax
purposes on December 18, 2001, when AHI purchased CF Advisors’
partnership interest and Palm Canyon reverted to a single-member
limited liability company. Palm Canyon’s 2001 Form 1065 is
clearly marked as a final return. The parties also stipulated
that “Palm Canyon’s status as a limited liability company under
the laws of the State of Delaware was cancelled on June 1, 2005.”
Accordingly, we conclude that the Palm Canyon partnership did not
have a principal place of business when the petition was filed.
The Court of Appeals for the District of Columbia Circuit
has not yet considered the issue of whether the valuation
misstatement penalty applies to the underpayments attributable to
overstated basis in property where the transaction is a sham or
lacks economic substance. Accordingly, we may give effect to our
own views on the issue. See Golsen v. Commissioner, supra at
757. As discussed above, we have held that when a partnership is
disregarded for tax purposes, the gross valuation misstatement
penalty applies. Petaluma FX Partners, LLC v. Commissioner, 131
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T.C. at 105. Our holding is consistent with views of the
majority of the Courts of Appeals that have addressed whether the
valuation misstatement penalty applies to disregarded
transactions. See cases cited supra note 92.
We sustain the 40-percent gross valuation misstatment
penalty under section 6662(h).
C. Negligence
Section 6662(a) and (b)(1) imposes an accuracy-related
penalty of 20 percent on any portion of an underpayment of tax
attributable to negligence or disregard of rules or regulations.
For purposes of section 6662, the term “negligence” includes any
failure to make a reasonable attempt to comply with Code
provisions or to exercise ordinary and reasonable care in
preparing a tax return. Sec. 6662(c); sec. 1.6662-3(b)(1),
Income Tax Regs. Rules or regulations include the provisions of
the Code, temporary or final regulations issued under the Code,
and revenue rulings or notices issued by the IRS. Sec.
1.6662-3(b)(2), Income Tax Regs. Negligence is determined by
testing a taxpayer’s conduct against that of a reasonable,
prudent person. See Zmuda v. Commissioner, 731 F.2d 1417, 1422
(9th Cir. 1984), affg. 79 T.C. 714 (1982). Negligence is
strongly indicated where a taxpayer fails to make a reasonable
attempt to ascertain the correctness of a deduction, credit, or
exclusion on a return which would seem to a reasonable and
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prudent person to be “too good to be true” under the
circumstances. Sec. 1.6662-3(b)(1)(ii), Income Tax Regs. A
return position that has a reasonable basis is not attributable
to negligence. Sec. 1.6662-3(b)(1), 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 colorable. Id.
Petitioner argues that because the relevant inquiry is
whether AHI, as Palm Canyon’s managing member and TMP, was
negligent in executing the MLD transaction, we must focus solely
on the conduct of Mr. Hamel, the sole owner of AHI (through
Thighmaster) at all relevant times. Petitioner asks that we
exclude Mr. Lamb from our negligence analysis because he was not
an AHI officer until after the MLD transaction occurred and he
had no financial interest or legal authority over Palm Canyon or
AHI at that time. According to petitioner, Mr. Hamel reasonably
relied on several experts, including Mr. Lamb, Mr. Brooks, Mr.
Barish, and Pryor Cashman in his decision to enter the MLD
transaction. Petitioner argues that Mr. Hamel relied on Mr. Lamb
to investigate the MLD transaction, assess the credibility of Mr.
Brooks, discuss the Pryor Cashman opinion with Mr. Kushner, and
work with Mr. Kipp, Palm Canyon’s return preparer. Petitioner
also argues that Mr. Hamel relied on Mr. Brooks with respect to
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the investment decisions and technical aspects of the MLD
transaction and that Mr. Hamel depended on Mr. Barish to perform
due diligence with respect to the MLD transaction and Pryor
Cashman opinion. Lastly, petitioner argues that Mr. Hamel relied
on the Pryor Cashman opinion for the tax treatment of the MLD
transaction. Petitioner concludes that because the MLD
transaction involved complicated issues and ample credible legal
authority existed for the position Palm Canyon took on its
return, Mr. Hamel acted reasonably and in a prudent manner in
relying on their advice.
We do not agree with petitioner’s attempt to exclude Mr.
Lamb from the ambit of our analysis of the negligence penalty.
While we agree that we must examine the conduct of AHI because it
was the managing member and TMP of Palm Canyon,93 we are not
restricted to examining the behavior of Mr. Hamel. Mr. Lamb
served as a director and held the offices of treasurer/CFO and
secretary of AHI. While Mr. Lamb did not hold a formal position
with AHI until after the MLD transaction, he began serving as a
93
The applicability of the negligence penalty depends on the
conduct of the partnership’s partners. See Jade Trading, LLC v.
Commissioner, 80 Fed. Cl. at 55. While CF Advisors was also a
member in Palm Canyon in 2001, we do not examine the behavior of
CF Advisors’ sole member, Mr. Brooks, because he played no role
in the decision to execute the MLD transaction or in the
reporting of the tax treatment. As discussed above, CF Advisors’
transitory membership in Palm Canyon was merely a means to
achieve the tax benefit contemplated by the MLD transaction. See
supra pp. 62-66.
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director and officer as of December 31, 2001, before Palm Canyon
filed its return. During this time, Mr. Lamb had ample
opportunity to review the tax consequences of the MLD
transaction, including the conclusions reached in the Pryor
Cashman opinion, and investigate its proper tax reporting.
Because of his intimate involvement with the MLD transaction, Mr.
Lamb was well positioned to assess its viability. Mr. Lamb
acquiesced in Palm Canyon’s tax treatment of the MLD transaction
and signed Palm Canyon’s return as AHI’s CFO. Accordingly, we
analyze Mr. Hamel’s and Mr. Lamb’s involvement in the MLD
transaction in assessing whether AHI was negligent.
As we discussed above, Cantley & Sedacca promoted the MLD
strategy as a tax avoidance scheme to approximately 150 clients,
including Mr. Lamb, who then introduced the strategy to Mr.
Hamel. For a $325,000 fee, Cantley & Sedacca provided Mr. Hamel
with a foreign currency investment arrangement designed to
generate a substantial tax loss that would obliterate Mr. Hamel’s
projected 2001 income. Before 2001 neither Mr. Hamel nor Mr.
Lamb had experience with, or expressed interest in, foreign
currency investments, and the Hamel companies had no need for
those investments. Mr. Lamb’s initial reaction to the tax
benefits generated by the MLD strategy was that they were “too
good to be true”.
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Despite the numerous red flags surrounding the legitimacy of
the MLD strategy, Mr. Hamel and Mr. Lamb conducted a limited
investigation of the principal parties involved in executing the
MLD transaction. Mr. Hamel essentially delegated all
responsibility to investigate the MLD strategy to Mr. Lamb. Mr.
Lamb and Mr. Barish conducted only a superficial investigation of
the parties involved. Mr. Lamb’s background check on Mr. Brooks
consisted of Internet research. Mr. Barish’s investigation of
Cantley & Sedacca was limited to verifying whether it was a
“valid law firm” and confirming that Mr. Ivsan received an LL.M.
from New York University. No one investigated Mr. Kushner or
Pryor Cashman and their role in promoting the MLD strategy. The
background report on Mr. Brooks that Mr. Barish obtained from Mr.
Wells provided little information aside from confirming Mr.
Brooks’ identity. Mr. Lamb and Mr. Barish attempted to gain
authorization from Mr. Brooks to obtain his credit report, but
Mr. Brooks denied this request. Neither Mr. Lamb nor Mr. Barish
attempted to verify the clients Mr. Brooks claimed to have.
Mr. Hamel also delegated to Mr. Lamb and Mr. Barish all
responsibility to investigate the technical aspects of the MLD
strategy. However, Mr. Lamb limited his investigation of the MLD
contracts to Internet research on MLDs. Mr. Lamb did not attempt
to verify the pricing of the MLD options using the Black-Scholes
pricing model or consult anyone independent of Cantley & Sedacca
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regarding the technical aspects of the MLD transaction. Mr. Lamb
did not provide any opinion regarding the proper tax treatment of
the MLD transaction. He testified that he did not understand the
technical tax aspects of the MLD transaction and was unqualified
to analyze the technical issues contained in the Pryor Cashman
opinion.
Likewise, Mr. Barish did not provide an opinion regarding
the proper tax treatment of the the MLD transaction. Mr. Barish
relied on the Pryor Cashman opinion, and he and Mr. Lamb
recommended that Mr. Hamel proceed with the MLD transaction.
However, any reliance on the Pryor Cashman opinion was
unreasonable for several reasons. First, Pryor Cashman, which
prepared between 40 and 50 tax opinions relating to the MLD
strategy during 2001 and 2002, was part of the Cantley & Sedacca
promoter team and had a conflict of interest. See Hansen v.
Commissioner, 471 F.3d 1021, 1031 (9th Cir. 2006) (“a taxpayer
cannot negate the negligence penalty through reliance on a
transaction’s promoters or on other advisors who have a conflict
of interest.”), affg. T.C. Memo. 2004-269; Neonatology
Associates, P.A. v. Commissioner, 115 T.C. 43, 98 (2000)
(“Reliance may be unreasonable when it is placed upon insiders,
promoters, or their offering materials, or when the person relied
upon has an inherent conflict of interest that the taxpayer knew
or should have known about.”), affd. 299 F.3d 221 (3d Cir. 2002).
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Second, Pryor Cashman explicitly stated that the Pryor Cashman
opinion “may not be relied upon (and is not otherwise released)
unless and until” it receives signed investor representations
from Mr. Hamel. Mr. Hamel did not provide the required signed
representations.
Mr. Lamb, a C.P.A., is an experienced tax practitioner who
knew that the MLD strategy was highly suspect. He knew that the
MLD strategy was geared toward tax avoidance. Despite this
knowledge, Mr. Lamb, as treasurer and CFO of AHI, failed to make
a reasonable attempt to ascertain the correctness of Palm
Canyon’s tax treatment of the MLD transaction through a proper
and thorough investigation. Accordingly, we hold that the
underpayment resulting from the MLD transaction was attributable
to negligence, and we sustain respondent’s alternative
determination under section 6662(b)(1).
D. Substantial Understatement
Section 6662(a) and (b)(2) imposes a 20-percent
accuracy-related penalty on the portion of an underpayment
attributable to any substantial understatement of income tax.
An understatement is defined as the excess of the amount of tax
required to be shown on the return for a taxable year over the
amount of tax imposed that is shown on the return, reduced by any
rebate. Sec. 6662(d)(2)(A). An understatement of income tax is
substantial if the understatement exceeds the greater of 10
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percent of the tax required to be shown on the return for the
taxable year or $5,000 ($10,000 in the case of a corporation).
Sec. 6662(d)(1).
Any understatement is reduced to the extent it is
attributable to an item: (1) If there is or was substantial
authority for the taxpayer’s treatment for such item, or (2) the
taxpayer adequately discloses the relevant facts affecting the
item’s tax treatment in the return or 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). However, if an
item is attributable to a tax shelter, adequate disclosure will
not allow a taxpayer to avoid the substantial understatement
penalty, and substantial authority will not reduce a taxpayer’s
understatement, unless the taxpayer reasonably believed that his
tax treatment of the item was more likely than not the proper
treatment. Sec. 6662(d)(2)(C)(i). For purposes of section
6662(d)(2)(C), a “tax shelter” is defined as: (1) A partnership
or other entity; (2) any investment plan or arrangement; or (3)
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).
Petitioner contends that Palm Canyon had substantial
authority for its tax treatment of the MLD transaction and that
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Palm Canyon adequately disclosed this position on its return.94
Petitioner also asserts that, even if the MLD transaction
constituted a tax shelter under section 6662(d)(2)(C)(iii), on
the basis of the existing authority at the time the MLD
transaction occurred, Palm Canyon reasonably believed that more
likely than not the tax benefits would be respected. Petitioner
cites the Bryan Cave opinion and the Pryor Cashman opinion as the
authority on which Mr. Hamel and his advisers relied in reaching
their conclusion that their position on the MLD transaction was
more likely than not proper.
Because the sole purpose of the MLD transaction was tax
avoidance, we have disregarded the effects of the MLD transaction
under the economic substance doctrine. Accordingly, we conclude
that the MLD transaction meets the definition of a tax shelter
under section 6662. Petitioner therefore may not reduce Palm
Canyon’s understatement by demonstrating adequate disclosure.
See sec. 6662(d)(2)(C)(i)(I). In order to avoid liability for
the section 6662(a) penalty under the substantial understatement
prong, petitioner must show that Palm Canyon had substantial
authority for its tax treatment of the MLD transaction and that
94
The amount of the understatement attributable to
respondent’s adjustments to Palm Canyon’s partnership items must
be determined at the partner level. See secs. 301.6231(a)(5)-
1(e), 301.6231(a)(6)-1(a)(3), Proced. & Admin. Regs. However,
whether Palm Canyon had substantial authority or adequately
disclosed the MLD transaction must be determined at the
partnership level. See sec. 6226(f).
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it reasonably believed that this tax treatment was more likely
than not proper. See sec. 6662(d)(2)(C)(i)(II).
Substantial authority for the tax treatment of an item
exists only 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. The weight accorded an authority depends on its
relevance and persuasiveness and the type of document providing
the authority. Sec. 1.6662-4(d)(3)(ii), Income Tax Regs.
Whether substantial authority exists is determined by an
objective standard involving an analysis of the law and
application of the law to relevant facts. Sec. 1.6662-4(d)(2),
Income Tax Regs. The taxpayer’s belief that there is substantial
authority for the tax treatment of an item is thus not relevant
in determining whether there is substantial authority for that
treatment. Sec. 1.6662-4(d)(3)(i), Income Tax Regs. The
substantial authority standard requires more than the “reasonable
basis” standard of section 1.6662-3(b)(3), Income Tax Regs.
(significantly higher than not frivolous or patently improper),
but is less stringent than the “more likely than not standard”
(greater than 50-percent likelihood of the position being
upheld). Sec. 1.6662-4(d)(2), Income Tax Regs. Substantial
authority must exist at the time the return is filed or must have
existed at the end of the taxpayer’s taxable year (in this case,
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July 19, 2002, and December 18, 2001, respectively). Sec.
1.6662-4(d)(3)(iv)(C), Income Tax Regs. Petitioner bears the
burden of proving substantial authority. See Higbee v.
Commissioner, 116 T.C. at 446.
Petitioner’s position with respect to the tax treatment of
the MLD transaction relies on Helmer v. Commissioner, T.C. Memo.
1975-160, and its progeny for the proposition that contingent
liabilities, such as the short MLD option, do not constitute
liabilities under section 752. However, reliance on Helmer is
not enough to establish substantial authority for Palm Canyon’s
reporting of the MLD transaction. Petitioner must also show that
it made a reasonable evaluation of the law regarding economic
substance and that that evaluation enabled it reasonably to
conclude that it was more likely than not that the MLD
transaction would be respected for Federal income tax purposes.
The ability of courts to disregard transactions devoid of
economic substance is well established. See Horn v.
Commissioner, 968 F.2d at 1236 (“The sham transaction doctrine is
an important judicial device for preventing the misuse of the tax
code”; the doctrine “generally works to prevent taxpayers from
claiming the tax benefits of transactions, which, although they
may be within the language of the Code, are not the type of
transaction Congress intended to favor.”). Any evaluation of
authority for purposes of section 6662 with respect to a tax
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shelter transaction must take the law with respect to economic
substance into account. Neither Palm Canyon nor its TMP and
advisers evaluated the MLD transaction for its economic
substance, and they did not conclude on the basis of any
reasonable investigation that the transaction would be respected
for Federal income tax purposes.
Palm Canyon received ample warning that respondent was not
likely to respect its tax treatment of the MLD transaction. On
September 5, 2000, more than a year before the MLD transaction
occurred, the IRS published Notice 2000-44, supra,95 in which the
IRS discussed certain types of transactions designed to produce
noneconomic tax losses by artificially overstating partnership
basis and explained that such losses were not allowable as
deductions for Federal income tax purposes and could result in
penalties to taxpayers. The notice provided the following
transaction as an example which, absent the offsetting $50
million deposits and fixed yield provisions, resembles the MLD
transaction:
a taxpayer purchases and writes options and purports to
create substantial positive basis in a partnership
interest by transferring those option positions to a
partnership. For example, a taxpayer might purchase
call options for a cost of $1,000X and simultaneously
write offsetting call options, with a slightly higher
95
Notices published by the IRS in the Internal Revenue
Bulletin are considered authority for purposes of determining
whether there is substantial authority for the tax treatment of
an item. Sec. 1.6662-4(d)(3)(iii), Income Tax Regs.
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strike price but the same expiration date, for a
premium of slightly less than $1,000X. Those option
positions are then transferred to a partnership which,
using additional amounts contributed to the
partnership, may engage in investment activities.
Under the position advanced by the promoters of
this arrangement, the taxpayer claims that the basis in
the taxpayer’s partnership interest is increased by the
cost of the purchased call options but is not reduced
under § 752 as a result of the partnership’s assumption
of the taxpayer’s obligation with respect to the
written call options. Therefore, disregarding
additional amounts contributed to the partnership,
transaction costs, and any income realized and expenses
incurred at the partnership level, the taxpayer
purports to have a basis in the partnership interest
equal to the cost of the purchased call options
($1,000X in this example), even though the taxpayer’s
net economic outlay to acquire the partnership interest
and the value of the partnership interest are nominal
or zero. On the disposition of the partnership
interest, the taxpayer claims a tax loss ($1,000X in
this example), even though the taxpayer has incurred no
corresponding economic loss. [Id., 2000-2 C.B. at
255.]
In the notice the IRS concluded that tax losses from these
transactions, and any other similar arrangements, were not
allowable as deductions for Federal income tax purposes. Id.
The notice also stated that transactions that are the same as or
substantially similar to the one described above may be subject
to challenge under section 752, section 1.701-2, Income Tax
Regs., or other antiabuse rules, and could result in the section
6662 accuracy-related penalty. Id., 2000-2 C.B. at 255-256.
There was no difference in essence between the MLD contracts and
the options described in the notice because the deposit and fixed
yield provisions of the MLD contracts were identical. Those
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identical provisions apart, what remains of the set of MLD
contracts is a pair of options, similar to the ones addressed by
the notice.
We conclude that, at the time petitioner filed Palm Canyon’s
return, petitioner did not have substantial authority for its tax
treatment of the MLD transaction. Consequently, we need not
decide whether petitioner reasonably believed that the tax
treatment of the MLD transaction was more likely than not proper.
We sustain respondent’s alternative determination that the
substantial understatement penalty is appropriate.
E. Section 6664(c) Reasonable Cause Exception
The accuracy-related penalty imposed under section 6662 does
not apply with respect to any portion of an underpayment as to
which the taxpayer can demonstrate reasonable cause and good
faith. Sec. 6664(c). Reasonable cause requires that the
taxpayer have exercised ordinary business care and prudence as to
the disputed item. See Neonatology Associates, P.A. v.
Commissioner, 115 T.C. at 98. The determination of 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. The most
important factor is generally the extent of the taxpayer’s effort
to assess the taxpayer’s proper tax liability. Id.
Circumstances that may indicate reasonable cause and good faith
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include an honest misunderstanding of fact or law that is
reasonable in light of all the facts and circumstances, including
the experience, knowledge, and education of the taxpayer. Id.
A taxpayer may demonstrate reasonable cause through reliance
on the advice of a professional tax adviser as to the proper
treatment of an item. Id.; see also Neonatology Associates, P.A.
v. Commissioner, supra at 98. The taxpayer must demonstrate that
reliance on professional advice was reasonable and that the
taxpayer acted in good faith. Sec. 1.6664-4(b)(1), Income Tax
Regs. All facts and circumstances will be considered in
determining whether a taxpayer has reasonably relied in good
faith on professional tax advice as to the treatment of the plan
or arrangement under Federal tax law. Sec. 1.6664-4(c)(1),
Income Tax Regs. The professional 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. The advice must consider the taxpayer’s purposes for
entering a transaction and for structuring a transaction in a
particular manner. Id. The advice cannot be based on
unreasonable factual or legal assumptions and cannot 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. Reliance may be unreasonable when it is placed
on insiders, promoters, or their offering materials, or when the
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person relied on has an inherent conflict of interest that the
taxpayer knew about or should have known about. See Hansen v.
Commissioner, 471 F.3d at 1031; Neonatology Associates, P.A. v.
Commissioner, supra at 98. Petitioner bears the burden of
proving reasonable cause. See Higbee v. Commissioner, 116 T.C.
at 446.
Petitioner argues that Palm Canyon had reasonable cause for
the reporting position it claimed on its return. Petitioner
contends that Mr. Hamel, who was not sophisticated in tax
matters, reasonably relied on his team of advisers in proceeding
with the MLD transaction. Petitioner claims that Mr. Hamel
employed Mr. Lamb to investigate the parties involved and Mr.
Barish to review the tax aspects of the MLD transaction.
According to petitioner, Mr. Lamb and Mr. Barish both reviewed
the Pryor Cashman opinion and advised Mr. Hamel to proceed with
the tax reporting of the MLD strategy on the basis of the
opinion’s conclusion that Palm Canyon’s tax treatment of the MLD
transaction would more likely than not be respected.
In assessing whether Palm Canyon had reasonable cause, we
examine AHI’s role in the MLD transaction as Palm Canyon’s
managing member and TMP. Specifically, we focus on the conduct
of Mr. Hamel, petitioner’s sole owner and an AHI director, and
Mr. Lamb, who also was an AHI director and its treasurer/CFO.
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Petitioner has not shown that AHI, as Palm Canyon’s managing
member, exercised ordinary business care and prudence in the tax
treatment of the MLD transaction. Mr. Hamel played virtually no
role in analyzing the tax aspects of the MLD transaction,
electing instead to delegate this responsibility to Mr. Lamb and
Mr. Barish. Neither Mr. Barish nor Mr. Lamb, as AHI’s
treasurer/CFO, conducted a proper investigation of the MLD
transaction, despite their recognition that the MLD strategy was
a tax avoidance scheme. Neither Mr. Barish nor Mr. Lamb provided
an opinion with respect to the MLD transaction. Instead, they
relied on opinions from Bryan Cave and Pryor Cashman.
Any reliance on the Pryor Cashman opinion was misplaced
because Pryor Cashman was part of Cantley & Sedacca’s promoter
team and had a conflict of interest. In addition, Palm Canyon
could not rely on the Pryor Cashman opinion because Mr. Hamel
failed to provide signed representations, which were an express
condition of reliance. Lastly, Palm Canyon could not rely on the
Pryor Cashman opinion because Palm Canyon and its advisers did
not provide Pryor Cashman with necessary facts that would have
affected Pryor Cashman’s conclusions. Sec. 1.6664-4(c)(1)(i),
Income Tax Regs. Significantly, Pryor Cashman did not receive
documents pertaining to the termination of CF Advisors as a
member of Palm Canyon or the early termination of the MLD
contracts nor did it receive information that might have led an
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independent professional adviser to conclude that the various
steps of the MLD transaction were predetermined. Any reliance on
the Bryan Cave opinion was improper because it was not prepared
for Palm Canyon and did not necessarily focus on facts peculiar
to it.
Accordingly, we reject petitioner’s contention that Palm
Canyon had reasonable cause and acted in good faith with respect
to its tax treatment of the MLD transaction, and we sustain the
section 6662 accuracy-related penalty determined by respondent.
VI. Conclusion
We sustain respondent’s adjustments to Palm Canyon’s return.
We find that the MLD transaction lacked economic substance and
thus hold that it should not be respected for Federal income tax
purposes.
We further sustain respondent’s determination as to the
section 6662 accuracy-related penalty. Petitioner failed to
establish that there was no gross valuation misstatement within
the meaning of section 6662(h). Alternatively, petitioner failed
to prove that Palm Canyon was not negligent within the meaning of
section 6662(b)(1) and that the penalty for substantial
understatement of income tax under section 6662(b)(2) should not
apply. Petitioner failed to establish that Palm Canyon had
reasonable cause under section 6664(c).
-104-
We have considered all the other arguments made by
petitioner, and to the extent not discussed above, we conclude
those arguments are irrelevant, moot, or without merit.
To reflect the foregoing,
Decision will be entered for
respondent.