T.C. Memo. 2015-197
UNITED STATES TAX COURT
WILLIAM J. KARDASH, SR., TRANSFEREE, Petitioner v. COMMISSIONER
OF INTERNAL REVENUE, Respondent*
CHARLES K. ROBB, TRANSFEREE, Petitioner v. COMMISSIONER OF
INTERNAL REVENUE, Respondent
Docket Nos. 12681-10, 12703-10. Filed October 6, 2015.
Erica G. Pless and Michael P. Tyson, for petitioner in docket No. 12681-10.
Mitchell I. Horowitz and Qian Wang, for petitioner in docket No. 12703-10.
Sergio Garcia-Pages, Michael S. Kramarz, Timothy L. Smith, and Andrew
Michael Tiktin, for respondent.
*
This opinion supplements our prior opinion Kardash v. Commissioner, T.C.
Memo. 2015-51.
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[*2] SUPPLEMENTAL MEMORANDUM FINDINGS OF
FACT AND OPINION
GOEKE, Judge: This matter is before the Court on petitioners’ motions for
reconsideration (motions) under Rule 1611 of our opinion in Kardash v.
Commissioner, T.C. Memo. 2015-51. In Kardash we held, among other things,
that respondent established that transfers to petitioners in 2005, 2006, and 2007
were fraudulent under Florida law. Accordingly, we held that petitioners were
liable as transferees for the years 2005, 2006, and 2007 under section 6901(a). Id.
at *41-*42.
In motions pursuant to Rule 161, petitioners request the Court to reconsider
our prior opinion. Specifically, petitioners raise two issues: (1) whether our
conclusion that Florida Engineered Construction Products Corp. (FECP) was
insolvent at the beginning of 2005 was a substantial error, and (2) whether
payments in 2005, 2006, and 2007 were part of a deferred compensation plan. Mr.
Kardash alleges in his motion that we failed to credit against his transferee liability
the Federal income tax liabilities paid on the transfers. Lastly, Mr. Robb alleges
that he was never a shareholder of FECP and therefore the transfers could not have
1
Unless otherwise indicated, all section references are to the Internal
Revenue Code in effect for the years at issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure.
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[*3] been dividends. Respondent has filed separate objections to petitioners’
motions, together with supporting memorandum of law. We will grant the
motions in part but will not alter the result of our prior opinion as described
herein.
FINDINGS OF FACT
We incorporate our findings in Kardash and set forth additional facts for
purposes of this opinion.
These cases involve respondent’s efforts to collect tax, additions to tax,
penalties, and interest assessed against FECP. FECP owes more than $120 million
but cannot pay its full liability. Petitioners, along with Messrs. Stanton and
Hughes, owned all of the stock of FECP and received transfers from the company.
Respondent now seeks to recoup over $5 million of the tax, additions to tax,
penalties, and interest from petitioners.
FECP assumed the operations of another Florida corporation known as
Cast-Crete Corp. of Florida (Cast-Crete) at the time of FECP’s incorporation.
Cast-Crete had in place a document titled “Cast-Crete Compensation Plan”
which did not mention deferred compensation. Pursuant to this document, the
excess of any bonus over $25,000 was to be paid to petitioners annually in stock.
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[*4] FECP made the following dividend payments to Mr. Kardash during 2005,
2006, and 2007.
Date Amount Date Amount
1/18/2005 $57,500 12/28/2005 $478,745
4/1/2005 75,000 1/27/2006 115,000
5/2/2005 115,000 2/22/2006 115,000
5/27/2005 57,500 3/27/2006 115,000
6/24/2005 57,500 4/24/2006 115,000
7/22/2005 57,500 5/22/2006 575,000
8/24/2005 57,500 6/28/2006 287,500
9/30/2005 57,500 9/25/2006 345,000
10/26/2005 57,500 12/18/2006 287,500
11/17/2005 478,745 3/23/2007 57,500
FECP made the following dividend payments to Mr. Robb during 2005,
2006, and 2007.
Date Amount Date Amount
1/18/2005 $7,500 12/28/2005 $62,445
4/1/2005 7,500 1/27/2006 15,000
5/2/2005 15,000 2/22/2006 15,000
5/27/2005 7,500 3/27/2006 15,000
6/24/2005 7,500 4/24/2006 15,000
7/22/2005 7,500 5/22/2006 75,000
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[*5] 8/24/2005 7,500 6/28/2006 37,500
9/30/2005 7,500 9/25/2006 45,000
10/26/2005 7,500 12/18/2006 37,500
11/17/2005 62,445 3/23/2007 7,500
Respondent’s expert, Arlene Aslanian, prepared a report in which she
computed the balances due from FECP as a result of its settlement with respondent
in a prior consolidated case in our Court. Ms. Aslanian estimated FECP’s Federal
income tax liabilities, additions to tax, penalties, and interest owed to respondent
on the transfer dates in the instant cases. She estimated that FECP owed
$34,233,591 on December 28, 2005, and $50,796,640 on January 27, 2006.
Using the market approach, respondent’s expert, Dr. Shaked, found that the
fair market value of FECP’s assets was less than the value of its Federal income
tax liabilities, additions to tax, penalties, and interest as of January 27, 2006,
resulting in insolvency. Dr. Shaked concluded that FECP remained insolvent
through March 23, 2007, as evidenced in the table below:2
2
Dr. Shaked used Ms. Aslanian’s Federal tax estimates with the addition of
FECP’s State tax liability estimates.
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[*6] Concluded
business
Valuation date enterprise value Total liabilities Equity value
12/28/2005 $48,780,526 $41,938,074 $6,842,453
1/27/2006 48,914,636 61,223,151 (12,308,515)
2/22/2006 58,237,469 61,395,247 (3,157,777)
3/27/2006 60,828,488 61,649,533 (821,044)
4/24/2006 56,800,441 64,763,979 (7,963,538)
5/22/2006 53,664,558 65,292,704 (11,628,146)
6/28/2006 51,727,219 65,910,449 (14,183,230)
9/25/2006 51,243,857 75,703,818 (24,459,962)
12/18/2006 54,686,810 76,843,140 (22,156,330)
3/23/2007 46,877,634 99,669,194 (52,791,560)
Below are the amounts of total dividends that FECP transferred to Messers.
Robb, Kardash, Stanton, and Hughes during 2005, 2006, and 2007.
Shareholder 2005 2006 2007
Charles K. Robb $199,890 $255,000 $7,500
William J. Kardash, Sr. 1,549,990 1,955,000 57,500
John Stanton 7,999,500 10,200,000 300,000
Ralph Hughes 7,999,500 10,200,000 300,000
Total 17,748,880 22,610,000 665,000
Petitioners timely filed their Rule 161 motions asking us to reconsider and
modify our opinion in Kardash v. Commissioner, T.C. Memo. 2015-51.
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[*7] OPINION
Reconsideration under Rule 161 serves the limited purpose of correcting
substantial errors of fact or law and allows the introduction of newly discovered
evidence that the moving party could not have introduced, by the exercise of due
diligence, in the prior proceeding. Estate of Quick v. Commissioner, 110 T.C.
440, 441 (1998). We usually do not grant motions for reconsideration absent a
showing of unusual circumstances or substantial error. CWT Farms, Inc. v.
Commissioner, 79 T.C. 1054, 1057 (1982), aff’d, 755 F.2d 790 (11th Cir. 1985).
Petitioners have raised valid concerns as to the valuations of FECP and the Federal
income tax liabilities for the years at issue, specifically 2005.
The burden of proof as to transferee liability is on the Commissioner. Sec.
6902(a); Rule 142(d). We find that respondent proved the transfers in 2005 were
fraudulent.
Petitioners contend that the Court erred in valuing FECP’s solvency by
relying on petitioners’ expert’s high estimates of FECP’s tax liabilities instead of
the Federal income tax liabilities as stipulated by the parties. Although petitioners
did not initially agree to and stipulate the liabilities that respondent’s expert
determined, we agree with petitioners that respondent’s estimates should have
been used. Moreover, petitioners point out that the Court erred when stating Dr.
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[*8] Shaked’s business enterprise value for the valuation date December 28, 2005.
The stated estimate was $57,311,606, but the actual estimate was $58,311,606,
undervaluing Dr. Shaked’s estimate.
Petitioners contend that with this correction, FECP would be solvent for the
2005 tax year. We agree, but for the sake of clarity, we deem it necessary to
discuss our valuation in greater detail than we did previously.
“‘Valuation is * * * necessarily an approximation.’ It is an inexact science
at best, capable of resolution only by ‘Solomon-like’ pronouncements.” Stanley
Works & Subs. v. Commissioner, 87 T.C. 389, 408 (1986) (alteration in original)
(quoting Silverman v. Commissioner, 538 F.2d 927, 933 (2d Cir. 1976), aff’g T.C.
Memo. 1974-285). “[F]inding market value is, after all, something for judgment,
experience; and reason on the pa[r]t of the trier, and does not lend itself to
dissection and separate evaluation.” Id. (quoting Colonial Fabrics v.
Commissioner, 202 F.2d 105, 107 (2d Cir. 1953)). “[W]e are not bound by the
opinion of any expert witness and will accept or reject expert testimony in the
exercise of sound judgment.” Estate of Newhouse v. Commissioner, 94 T.C. 193,
217 (1990).
We rely largely on Dr. Shaked’s market multiple valuation to determine the
solvency of FECP. Although Dr. Shaked recommends the use of the asset
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[*9] accumulation value, we disagree. The asset accumulation value does not take
FECP’s intangibles into account. We believe that FECP had some intangible
assets with value and therefore rely on the market multiple valuation that values
FECP as a going concern. From Dr. Shaked’s market multiple valuation it is clear
that FECP had a negative equity value of $12,308,515 on the transfer date, January
27, 2006, and it remained insolvent through March 23, 2007. Thus, we modify our
initial finding that FECP became insolvent in 2005 and instead find that FECP
became insolvent starting January 27, 2006, and remained insolvent for 2006 and
2007.
Petitioners argue that we should reconsider our opinion to find them not
liable for the 2005 transfers because FECP was solvent at the time of the transfers.
Under Florida’s Uniform Fraudulent Transfer Act (FUFTA), a transfer is
fraudulent if the debtor did not receive reasonably equivalent value and the debtor
was insolvent at the time of the transfer or became insolvent as a result of the
transfer. Fla. Stat. Ann. sec. 726.106(1) (West 2012). “Although the language of
the UFTA [Uniform Fraudulent Transfer Act] speaks in terms of a single transfer
of property, a series of transfers may also be found to be fraudulent.” Berland v.
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[*10] Mussa (In re Mussa), 215 B.R. 158, 169 (Bankr. N.D. Ill. 1997).3 Further, we
have held that insolvency may be measured after a series of related transfers which
in total leave the transferor insolvent. See Botz v. Helvering, 134 F.2d 538, 543
(8th Cir. 1943), aff’g 45 B.T.A. 970 (1941); see also Hagaman v. Commissioner,
100 T.C. 180 (1993); Gumm v. Commissioner, 93 T.C. 475, 480 (1989), aff’d
without published opinion, 933 F.2d 1014 (9th Cir. 1991); Leach v.
Commissioner, 21 T.C. 70, 75 (1953).
As discussed in Kardash v. Commissioner, at *28-*31, we held that the
2003 and 2004 transfers were for reasonably equivalent value and were different
in nature from the transfers in 2005, 2006, and 2007. Although we now find that
FECP was solvent during 2005, the transfers were still constructively fraudulent
because they were part of a series of transactions that led to the insolvency of
FECP. Therefore, we find that the transfers beginning in 2005 were fraudulent
because the transfers were not for reasonably equivalent value and FECP became
insolvent as a result of the series of transfers.
3
Although the current cases are subject to Florida law, the Illinois case is
instructive in interpreting the Florida statute. Illinois, as well as Florida, has
adopted the Uniform Fraudulent Transfer Act (UFTA). 740 ILCS 160/1 to 160/12
(West 2010). The general purpose of UFTA and FUFTA is to make the law
uniform among the States enacting it. Fla. Stat. Ann. sec. 726.112 (West 2012);
UFTA sec. 11, 7A (Part II), U.L.A. 203 (2006).
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[*11] Petitioners argue that the Court erred by not finding that the payments in
2005, 2006, and 2007 were part of a deferred compensation plan. The document
that petitioners rely on makes no reference to a “Deferred Compensation Plan”.
Moreover, the document petitioners refer to states that petitioners would be
entitled to cash compensation “not to exceed $25,000 per month” and “paid
annually in stock” to the extent petitioners’ compensation exceeds the $25,000 per
month. The payments exceeding $25,000 were, however, made in cash, not stock,
and therefore could not have been pursuant to the purported deferred
compensation plan. Moreover, FECP reported the payments as dividends on
Forms 1099-DIV, Dividends and Distributions, and petitioners reported the
payments as dividends on their individual tax returns.
Mr. Kardash alleges that he is entitled to credits against his transferee
liability for taxes paid on transfers as reported dividends. Mr. Kardash argues that
the Government would receive an inequitable windfall if we refused to credit him
with the amounts of tax he paid on the transferred amounts in 2005, 2006, and
2007. Reconsideration under Rule 161 is not the proper avenue; section 1341 is
the appropriate remedy for Mr. Kardash in this situation. See Delpit v.
Commissioner, T.C. Memo. 1992-297 (citing Maynard Hosp., Inc. v.
Commissioner, 54 T.C. 1675 (1970)).
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[*12] Mr. Robb argues that the transfers could not have been dividends because
he was never a stockholder of FECP but instead received shares of Cast-Crete
stock on December 30, 2004. He also argues that these shares were worthless
because we found FECP insolvent as of 2005. Under either Florida’s “De Facto
Merger” doctrine, see 300 Pine Island Assocs. v. Steven L. Cohen & Assocs., 547
So. 2d 255, 256 (Fla. Dist. Ct. App. 1989) (citing Arnold Graphics Indus., Inc. v.
Indep. Agent Ctr., Inc., 775 F.2d 38 (2d Cir. 1985)) or its “Continuation of
Business” doctrine, see Amjad Munim, M.D., P.A. v. Azar, 648 So. 2d 145, 154
(Fla. Dist. Ct. App. 1994) (citing Bud Antle, Inc. v. E. Foods, Inc., 758 F.2d 1451,
1458 (11th Cir. 1985)), the acts committed, transactions entered into, and records
kept by Cast-Crete would be treated as acts, transactions, and records of FECP.
The shares issued in Cast-Crete’s name will be treated as issued under FECP’s
name.
Petitioners’ further arguments are merely a rehash of legal arguments from
their briefs, and a motion for reconsideration is not the appropriate forum for
arguments this Court has previously rejected. See Estate of Quick v.
Commissioner, 110 T.C. at 441-442.
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[*13] In reaching our holdings herein, we have considered all arguments made,
and, to the extent not mentioned above, we conclude they are moot, irrelevant, or
without merit.
To reflect the foregoing,
An appropriate order will be
issued, and decisions will be entered
under Rule 155.