DeNAPLES v. CIR

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 11-2205
_____________

DOMINICK DENAPLES and MARY ANN DENAPLES,
Petitioners

v.

COMMISSIONER OF INTERNAL REVENUE,
Respondent

No. 14357-08

LOUIS DENAPLES and BETTY A. DENAPLES,
Petitioners

v.

COMMISSIONER OF INTERNAL REVENUE,
Respondent

No. 14359-08

Dominick DeNaples, Mary Ann DeNaples,
Louis DeNaples, and Betty A. DeNaples,
Appellants

1
 _____________

On Appeal from the United States Tax Court
(T.C. 14357-08; T.C. 14359-08)
Tax Judge: Honorable Arthur L. Nims III
_____________

Argued November 16, 2011
_____________

Before: FUENTES, CHAGARES, Circuit Judges, and
RESTANI, Judge*

(Opinion Filed: March 19, 2012)

Layla J. Aksakal
David B. Blair
Alan I. Horowitz (Argued)
Joel C. Weiss
Miller & Chevalier
655 Fifteenth Street, N.W.
Suite 900
Washington, DC 20005

Barry H. Frank
Archer & Greiner
1650 Market Street
One Liberty Place, 32nd Floor
Philadelphia, PA 19103

*
Honorable Jane A. Restani, Judge of the United States
Court of International Trade, sitting by designation.

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Counsel for Petitioners-Appellants Betty DeNaples, Dominick
DeNaples, Louis DeNaples, Mary Ann DeNaples

Jonathan S. Cohen
Randolph L. Hutter (Argued)
Gilbert Rothenberg
William J. Wilkins
United States Department of Justice
Tax Division
950 Pennsylvania Avenue, N.W.
P.O. Box 502
Washington, DC 20044

Counsel for Respondent-Appellee Commissioner of
Internal Revenue
_____________

OPINION OF THE COURT
_____________

FUENTES, Circuit Judge.

Dominick, Louis, Betty, and Mary Ann DeNaples had
an interest in real estate in Pennsylvania which the state
condemned as part of the construction of the Lackawanna
Valley Industrial Highway. To pay for the land, the state
agreed to a settlement under which it would pay them $40.9
million, with interest, in five yearly installments. During the
first three years of the agreement, the DeNaples excluded this
interest from their federal income taxes as tax exempt interest
under I.R.C. § 103, which permits exclusion of interest
payments that are obligations of the state. The IRS issued to

3
each couple a deficiency notice for $2.3 million, which was
affirmed by the Tax Court. On appeal, the principal issue is
whether Section 103 exempts from federal taxation the
installment interest paid under an agreement that allowed the
state to make yearly payments. We hold that it does.

I.

The facts are not in dispute and were stipulated to
before the Tax Court. Dominick DeNaples and Louis
DeNaples were equal partners in D&L Realty, Rail Realty,
Inc., F&L Realty, Inc., and Keystone Company.1 These
entities owned an interest in several parcels of real property in
Pennsylvania. The Commonwealth of Pennsylvania, through
the Pennsylvania Department of Transportation, sought to
acquire the property to build the Lackawanna Valley
Industrial Highway. In 1993 and 1994, to permit construction
to go forward, the State and the DeNaples entered into two
Rights of Entry, which permitted the State to enter onto the
land but did not alter the DeNaples‟ entitlement to just
compensation.

In 1998, the State initiated condemnation proceedings
against the properties in the Pennsylvania Court of Common
Pleas by filing a Declaration of Taking pursuant to former 26

1
Dominick DeNaples is married to Mary Ann
DeNaples, and Betty DeNaples is married to Louis DeNaples.
Each couple filed a joint tax return. For our purposes, they
are indistinguishable as Dominick and Louis owned equal
shares in the partnership, reported the same interest income,
and were issued the same deficiency notice. When we refer
to the DeNaples, we refer to them jointly.

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Pa. Stat. § 1-402(a). The DeNaples objected, contending that
the declaration did not adequately describe the property. The
court agreed and dismissed some of the suits. On the
remaining suits, a jury trial was commenced and then stayed
when the parties indicated that they had settled.

On November 7, 2001, the parties signed a
memorandum of intent to settle. The DeNaples agreed that,
in exchange for all their ownership interest in all the parcels
of land, they would received compensation of approximately
$40.9 million, of which $24.6 million would be allocated to
principal, and $16.3 million would be allocated to interest
(“settlement interest”). There is nothing in the record that
indicates why these numbers were selected.

A few months later, the parties entered into a formal
settlement agreement. The agreement contained an
integration clause, which held that the agreement was the
“entire understanding among the parties . . . and supersede[d]
all prior and contemporaneous agreements and
understandings.” JA131.

Because the State lacked sufficient funds available to
pay the settlement in full, the DeNaples further agreed to
accept the settlement money in five installment payments. By
their agreement, each installment payment would be subject
to the interest rate set forth in Rule 238(a)(3) of the
Pennsylvania Rules of Civil Procedure, which governs the
interest rate for tort suits (“installment interest”).2 This

2
The interest rate is “the rate equal to the prime rate as
listed in the first edition of the Wall Street Journal published
for each calendar year for which the damages are awarded,

5
interest rate changes every year. Under the agreement, the
Pennsylvania Court of Common Pleas was to retain
jurisdiction and the DeNaples retained the right to pursue any
and all remedies should Pennsylvania default. The settlement
agreement required that the Court of Common Pleas enter a
stipulation as an order of the court, and that the State ensure
the action was marked “settled, discontinued and ended as
between” the parties.3 JA129.

The State made timely and complete payments under
the agreement. In fact, Pennsylvania paid the remainder of
the amount due in 2005, a full year early. The DeNaples filed
income tax returns for tax years 2003 through 2005, and
excluded from their gross income a portion of the settlement
interest income and all of the installment interest income they
had received. As to the settlement interest income, the

plus one percent, not compounded.” Pa. R. Civ. P. 238(a)(3)
(2002). In 2002, the prime interest rate was 4.75%; in 2003,
the interest rate was 4.25%; in 2004, it was 4.00%; in 2005, it
was 5.25%; in 2006, it was 7.25%. Money Rates, Wall St.
Journal, Jan. 2, 2002; Money Rates, Wall St. Journal, Jan. 2,
2003; Money Rates, Wall St. Journal, Jan. 2, 2004; Money
Rates, Wall St. Journal, Jan. 3, 2005; Money Rates, Wall St.
Journal, Jan. 3, 2006. Thus, the installment interest rate that
Pennsylvania paid for years 2002 through 2006 were 5.75%,
5.25%, 5.00%, 6.25%, and 8.25%, respectively.
3
The record before this Court does not contain a copy
of the stipulation that the court was to enter. However, it
could not modify any provision of the agreement because,
according to the terms of the agreement, modification
required the written agreement of both parties.

6
DeNaples received approximately $4.3 million dollars for tax
years 2002 through 2004 and approximately $8.7 million for
tax year 2005. The DeNaples excluded from their federal
gross income any interest received above 6%, contending that
anything above this rate was exempt as an obligation of the
State under Section 103. As to installment interest, the
DeNaples received approximately $1.9 million in 2002, $3.8
million in 2003, $2.2 million in 2004, and $2.7 million in
2005. The DeNaples excluded all the installment interest
income from their gross income calculations as exempt under
Section 103. In 2008, the IRS issued deficiency notices to the
DeNaples. For each couple, the IRS contended that the
DeNaples owed an additional $2.3 million dollars in taxes,
comprised of $714,019 for tax year 2003, $587,257 for tax
year 2004, and $1,023,299 for tax year 2005.

After the parties stipulated to the facts, the United
States Tax Court issued a memorandum decision and order
finding that no part of the settlement interest or the
installment interest was excludable under Section 103.
DeNaples v. Comm’r, T.C. Memo. 2010-171, at *3 (2010).
As to the settlement interest, the Tax Court concluded that the
DeNaples had failed to demonstrate that they received interest
income above and beyond what was legally required and
therefore the settlement interest was not an obligation of the
State because it did not invoke the State‟s borrowing
authority. See id. at *4. The Tax Court also determined that
the parties‟ allocation of the settlement interest was arbitrary
and thus could not be excluded from gross income. Id. at *3.
As to the installment interest, the Tax Court determined that
none of it was excludable under Section 103 because the
DeNaples were entitled to it as part of their just compensation

7
requirement. Id. at *4. The Tax Court entered an order
affirming the IRS‟ deficiency calculations in full.

Shortly thereafter, the DeNaples filed a motion for
reconsideration and a motion to vacate. Notably, they sought
to introduce evidence of the prevailing commercial rate to
show that some of the settlement interest was excludable.
The Tax Court denied both motions, reaffirming its original
decision. It also refused to reopen the record to recompute
the DeNaples‟ deficiencies. DeNaples v. Comm’r, T.C.
Memo. 2011-46, at *5 (2011). The Tax Court held that to do
so would require reopening the proceeding, which was
inappropriate at that stage. Id. The DeNaples filed a timely
notice of appeal.

II.

The Tax Court had jurisdiction over the dispute
pursuant to 26 U.S.C. §§ 6213(a), 7442. This Court has
appellate jurisdiction pursuant to 26 U.S.C. § 7482(a)(1).
Venue is proper in this Circuit because the DeNaples are legal
residents of Pennsylvania. 26 U.S.C. § 7482(b)(1)(A).

This Court exercises de novo review over the Tax
Court‟s findings of law, including its construction and
application of the Internal Revenue Code. PNC Bancorp, Inc.
v. Comm’r, 212 F.3d 822, 827 (3d Cir. 2000). Factual
findings and inferences drawn therefrom are reviewed for
clear error. Id.

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 A. Installment Interest

We first address whether the interest the DeNaples
received on each installment payment is excludable from their
federal income taxes under Section 103 because it is an
“obligation of a State.” Section 103 of the Internal Revenue
Code holds in relevant part: “gross income does not include
interest on any State or local bond.” 26 U.S.C. § 103(a). The
Code defines a “State or local bond” as “an obligation of a
State or political subdivision thereof.” Id. § 103(c)(1). As a
tax exemption, this provision should be construed narrowly.
In re Hechinger Inv. Co. of Delaware, Inc., 335 F.3d 243, 259
(3d Cir. 2003) (“As a general rule grants of tax exemptions
are given a strict interpretation against the assertions of the
taxpayer and in favor of the taxing power but it is equally true
that such interpretation may not be so literal and narrow as to
defeat the exemptions purpose.”) (internal quotation marks
omitted).

Some form of Section 103 has been a part of the Tax
Code since the passage of the Sixteenth Amendment in 1913.
United States Trust Co. of New York v. Anderson, 65 F.2d
575, 577 (2d Cir. 1933). Courts have universally recognized
that this provision was designed primarily to protect the
borrowing power of the states. Id.; see also Stewart v.
Comm’r, 714 F.2d 977, 981 (9th Cir. 1983) (Stewart I); Drew
v. United States, 551 F.2d 85, 87 (5th Cir. 1977) (“The
Supreme Court has made it clear that the purpose of Section
103 is to encourage loans in aid of governmental borrowing
power.”); Holley v. United States, 124 F.2d 909, 911 (6th Cir.
1942).

9
 As the Supreme Court has made clear, what constitutes
an “obligation” under the statute should not be “extended to
include interest upon indebtedness not incurred under the
borrowing power.” Helvering v. Stockholms Enskilda Bank,
293 U.S. 84, 86-87 (1934). This holding implicitly
recognized that the opposite proposition must also be true:
that an “obligation” of a State does include indebtedness that
is incurred “under the borrowing power.” See id. In
collecting the cases in this field, the Ninth Circuit
persuasively reasoned that when a government‟s obligation to
pay interest arises by operation of law, it does not implicate
the state‟s borrowing power, as “taxing the recipient of such
interest does not adversely affect the government‟s ability to
borrow money.” Stewart I, 714 F.2d at 981. Thus, when the
state pays interest at a fixed rate pursuant to a statutory or
judicial command, it is plainly not excludable under Section
103 of the Internal Revenue Code. On the other hand, when
the government‟s obligation to pay interest arises out of
voluntary bargaining, the interest exclusion may play an
important role in allowing the state to reduce its borrowing
costs. This implicates the state‟s borrowing authority and
may be excludable under Section 103.

With these principles in mind, the first question before
us is whether Pennsylvania‟s interest obligation arose by
operation of law or by voluntary bargaining. Because
Pennsylvania and the DeNaples negotiated a complete arms-
length settlement of Pennsylvania‟s claims and because the
DeNaples agreed to a lower, variable interest rate for the
purpose of extending credit to Pennsylvania, we hold that the
State‟s obligation arose by voluntary bargaining, not by
operation of law.

10
 We recognize that in most Pennsylvania condemnation
proceedings, the State‟s obligation to pay interest arises by
operation of law. A condemnee is entitled to just
compensation for the taking, which is defined as the
difference between the market value of the condemnee‟s
property interest before and after the taking. Former 26 Pa.
Stat. §§ 1-601, 1-602. If the State delays in making payment,
a condemnee is entitled to interest. See former 26 Pa. Stat. §
1-611. The rate of interest to which a condemnee is entitled
is not fixed. Indeed, the Pennsylvania Supreme Court has
declared the former statute requiring a fixed 6% interest rate
unconstitutional. Hughes v. Dep’t. of Transp., 523 A.2d 747,
753 (1987). In Hughes, the Pennsylvania Supreme Court
joined the majority of other states in holding that “if the
property owner produces evidence that the six percent rate is
constitutionally insufficient, he should be entitled to a higher
rate of return as part of just compensation.” Id. at 753
(internal quotation marks and citations omitted); see also
McGaffic v. Redev. Auth. of New Castle, 732 A.2d 663, 670
(Pa. Commw. Ct. 1999) (applying the higher prevailing
commercial rate after finding that the statutory 6% interest
rate did not provide for adequate compensation); Wasserott v.
PennDOT, 13 Pa. D. & C.4th 593, 595 (Ct. Com. Pl. 1991)
(“However, in Hughes . . . the Supreme Court refuted the
mandatory application of [former 26 Pa. Stat § 1-611]. The
[Pennsylvania] Supreme Court, in effect, opened the door for
the trial court to determine whether the [State] Code interest
rate provides just compensation to the condemnee.”). The
prevailing commercial rate is different, and usually higher,
than the Rule 238 tort rate that the DeNaples and the State
selected. See Hagen v. East Pennsboro Twp., 713 A.2d 1187,
1191 (Pa. Commw. Ct. 1998). Thus, at the time the

11
DeNaples were negotiating with Pennsylvania, they were
entitled to either 6% or a higher rate.4

When the DeNaples and Pennsylvania sat down at the
bargaining table to negotiate an arms-length settlement
agreement, they did so in the shadow of the ongoing
condemnation proceeding with its attendant rights and
obligations, including the DeNaples‟ right to interest for any
payment delay. However, when they crafted a total and
complete settlement and the DeNaples agreed to take
installment payments because the State needed credit, the
statutory right to interest became nothing more than a
negotiating chip in the DeNaples‟ pocket. It could be, as it
was here, bargained away. Albrecht v. United States, 329
U.S. 599, 604 (1947) (when a property owner contracts for
the sale of their property to the government “rather than to
have „just compensation,‟ in the constitutional sense, fixed by
the courts, [a court] must look to those terms for the measure
of their compensation, including their right to . . . interest.”).
This transforms the State‟s interest obligation from a
mandatory one to a voluntary one and, thus, alters the Section
103 analysis.5

4
In 2006, Pennsylvania enacted a new statute whereby
the interest rate for delay damages is the prime interest rate
plus 1%. 26 Pa. Cons. Stat. § 713 (2006).
5
In Stewart II, the Ninth Circuit found whether the
settlement was entered into because the State needed credit to
be a material fact that altered the application of Section 103 to
a condemnation settlement. Stewart v. United States, 739
F.2d 411, 414 (9th Cir. 1984). The Commissioner attempts to
distinguish this case by pointing out that in Stewart II,

12
 Thus, we can no longer say that for this particular
settlement agreement, the State‟s obligation to pay interest at
a fixed rate arose by operation of law. Instead, the State‟s
obligation to pay interest at the selected rate arose by
operation of a freely-negotiated contract that contemplated no
further judicial intervention. In this context, the parties were
free to select any rate of interest or none at all. As it was
undisputed that the State and the DeNaples entered into the
installment agreement because the State needed credit, this
total and complete settlement was voluntary and thus
implicated the State‟s borrowing authority.

The Commissioner relies heavily on the Sixth Circuit‟s
decision in Holley v. United States. This case is not binding
on us and, in any event, is distinguishable. In Holley, the city
was in financial difficulty and needed to defer payment for
the condemnee‟s property. Holley, 124 F.2d at 910. The
parties fashioned an agreement “providing for the method of
payment by the city.” Id. This settlement agreement became

condemnation proceedings were only threatened while here
they had been commenced. This, the Commissioner argues,
demonstrates that the transfer was obligatory not voluntary.
While the Government is correct that the DeNaples were
going to be obligated to sell their property to Pennsylvania,
the DeNaples had a choice over the terms by which they did
so, including whether they would receive interest and at what
rate. They could have proceeded to judgment and obtained a
judicially mandated just compensation award with statutory
interest. Instead, they voluntary bargained with the State
because the State needed an extension of credit to pay any
award. Thus, the distinction is not dispositive here.

13
“part of the award itself” that was issued by the court when
the condemnation proceeding was completed. See id. The
DeNaples and Pennsylvania, by contrast, agreed to a total
settlement which extinguished the condemnation proceeding.
There is no evidence in the record that any condemnation
award was ever issued as the settlement agreement makes
clear the case was “settled, discontinued and ended.” This is
critical. The DeNaples and Pennsylvania created an
agreement completely separate from the judicial process and
the constitutional requirement of just compensation, as such
the parties‟ rights and obligations are defined solely by the
agreement‟s terms. See Albrecht, 329 U.S. at 604. In Holley,
however, the agreement was folded into a just compensation
award issued by the court. Therefore, the court in Holley was
required by law to award interest as part of its judgment,
while the DeNaples were free to bargain it away without
judicial oversight.

In fact, the DeNaples accepted a lower, variable
interest rate than what they were otherwise entitled to. The
DeNaples had the right to interest at a presumptive rate of 6%
or the prevailing commercial rate, yet agreed to accept a
lower, variable interest rate. The State‟s obligation to pay
this amount of interest did not arise by operation of law as
there was no statute or judicial decree to pay interest at this
rate. Pennsylvania law specifically forbids application of the
Rule 238 interest rate to eminent domain proceedings. Pa. R.
Civ. P. 238(e)(1)(“[Rule 238] shall not apply to . . . eminent
domain proceedings.” ). Thus, this rate of interest could only
apply to this transaction through a private contract, not
through a condemnation proceeding.

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 Finally, the purpose underlying Section 103 was well
served in this case. The State was able to obtain credit6 from
the DeNaples at a lower rate of interest than it otherwise
might have had to if the condemnation proceeding had been
completed. In a condemnation proceeding, a court could have
imposed a 6% interest rate or the prevailing commercial rate,
which can be as much as prime plus 3%. Instead, through its
negotiations and in part because of the Section 103 exclusion,
the State was able to borrow money from the DeNaples at a
lower rate of interest, ultimately aiding the State‟s borrowing
authority and saving it money.

To be clear, we do not hold that any interest payment
made pursuant to a voluntary settlement agreement is
automatically excludable under Section 103. Rather, it is
excludable here because, given the nature of how and what
the parties agreed to in the settlement agreement, it is clear
that the obligation to pay interest at the Rule 238 rate arose
not by operation of law but through the voluntary, arms-
length negotiations between the DeNaples and Pennsylvania.

6
By surrendering its property in exchange for a promise of
future payments, the DeNaples extended credit to
Pennsylvania. Credit is the “provision of . . . goods . . . with
the expectation of future payment.” Merriam-Webster Online
Dictionary, available at http://www.merriam-
webster.com/dictionary/credit; see also Pollice v. Nat’l Tax
Funding, L.P., 225 F.3d 379, 412 (3d Cir. 2000) (“[T]he
definition of „credit,‟ however encompasses . . . [the] right
granted by a creditor to incur debt and defer its payment. . .
.”) (internal quotation marks omitted).

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 For these reasons, we hold that the Tax Court erred as
a matter of law when it held that the DeNaples should have
included the interest they received on the installment
payments in their gross income calculation. We, therefore,
will reverse the Tax Court‟s decision on this issue.

B. Settlement Interest

We next determine whether the Tax Court erred when
it held that none of the settlement interest was excludable
under Section 103, in part because it refused to reopen the
record and accept evidence about the prevailing commercial
loan rate. We hold that the Tax Court did not.

In their memorandum of understanding, Pennsylvania
and the DeNaples allocated $26 million to principal and $14
million to interest, referred to as settlement interest. This
interest was meant to compensate the DeNaples for the delay
between the time of the initial Right to Entry and the signing
of the settlement agreement. In their tax returns, the
DeNaples excluded from their gross income any delay
interest in excess of 6%, reasoning that the State was only
required to pay 6% and anything above that was a result of
the State‟s voluntary bargaining.

In its initial opinion, the Tax Court found that the
allocation between interest and principal was arbitrary and
excessive. DeNaples v. Comm’r, T.C. Memo. 2010-171, at
*3. To the Tax Court, it appeared that the parties had
allocated approximately the same ratio of 39.759 percent of
the total yearly payment to interest. Id. From this, the Court
held that the DeNaples were not entitled to exclude any
interest from their gross income under Section 103. Despite

16
indicating that too much had been allocated to interest, the
Tax Court, on reconsideration, rejected the DeNaples‟ request
to recalculate the deficiency pursuant to Tax Court Rule 155.
It held that to recompute would require the introduction of the
prevailing commercial rate, which was not in evidence. T.C.
Memo. 2011-46 at *5. Thus, the Tax Court found that the
DeNaples had failed to meet their burden of proof that the
deficiency was inaccurate. Id. We agree.

Under Tax Court Rule 155, “[w]here the Court has
filed or stated its opinion determining the issues in a case, it
may withhold entry of its decision for purposes of permitting
the parties to submit computations pursuant to the Court‟s
determination of the issues, showing the correct amount to be
included in the decision.” However, this process is not meant
to provide litigants an opportunity for retrial or
reconsideration. I.R.C. Rule 155(c). Issues considered in a
Rule 155 proceeding are limited to “purely mathematically
generated computational items.” Blonien v. Comm’r, T.C.
Memo. 2003-308, at *4 (2003) (quoting The Home Group,
Inc. v. Comm’r, 91 T.C. 265, 269 (1988), aff’d on other
grounds, 875 F.2d 377 (2d Cir.1989)). Rule 155 does not
allow for the introduction of new evidence that was not
before the Tax Court in the original proceeding. Paccar, Inc.
v. Comm’r, 849 F.2d 393, 400 (9th Cir. 1988). There is no
new evidence if “the evidence necessary to resolve a dispute
between parties regarding such computations is already in the
record or within the scope of the evidence presented in
support of issues already pleaded.” Emert v. Comm’r, 249
F.3d 1130, 1132 (9th Cir. 2001).

Here, there was not sufficient evidence in the record
from which the Tax Court could calculate the prevailing

17
commercial rate at the time of the settlement agreement. The
Tax Court acknowledged that the prevailing commercial rate
is usually calculated by taking the prime interest rate and
adding 1 to 3 percent. DeNaples v. Comm’r, T.C. Memo.
2010-171, at *3 n.2 (citing Hagan, 713 A.2d at 1191). While
the prime interest rate is easily accessible, it would require the
Tax Court to reopen the record and introduce new evidence
regarding what additional interest rate to apply.7 Rule 155
does not allow this. To allow the parties to introduce new
evidence under the guise that the Tax Court can take judicial
notice of it or simply hold the DeNaples responsible for the
highest possible rate would invite relitigation of the issue.
This is squarely precluded by the Tax Court‟s rule. Without
any evidence of the prevailing commercial rate, the Tax
Court‟s conclusion that the DeNaples had failed to meet their
burden of proof is correct.

For these reasons, we hold that the Tax Court did not
err in refusing to reopen the record and finding that the
DeNaples had failed to meet their burden. Remand to the Tax
Court for a recalculation of the deficiency on this basis is
unwarranted. Thus, we will affirm the Tax Court‟s
determination as to settlement interest.

7
As the Commissioner argues, recalculation of the
settlement amount might require further evidence, such as the
fair market value of the property at the time of taking. While
we do not necessarily agree, we note that this would only
bolster our holding.

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 III.

The Decisions and Orders of the United States Tax
Court will be affirmed in part and reversed in part. We will
remand this matter to the Tax Court for further proceedings
consistent with this opinion.

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