Redondo Construction Corp. v. Banco Exterior De Espana, S.A.

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1407

REDONDO CONSTRUCTION CORPORATION,

Plaintiff, Appellee,

v.

BANCO EXTERIOR DE ESPANA, S.A.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]

Before

Breyer, Chief Judge,

Aldrich, Senior Circuit Judge,

and McAuliffe,* District Judge.

Jose A. Axtmayer, Francisco A. Besosa, Danilo M. Eboli and

Goldman Antonetti Cordova & Axtmayer on brief for appellant.

Antonio Moreda-Toledo, Pedro J. Diaz-Garcia and Moreda & Moreda

on brief for appellee.

November 24, 1993

*Of the District of New Hampshire, sitting by designation.

ALDRICH, Senior Circuit Judge. This is the

epilogue to a charade designed by a foreign lender to avoid

payment of Puerto Rico income taxes on Puerto Rico income.

The script was a farce; the players did not even follow it.

Its reviewers give it a bad notice.

I. Background

Plaintiff, Redondo Construction Corp., is a Puerto

Rico corporation engaged in the construction business.

Defendant, Banco Exterior de Espa a, is a Spanish bank with

an office in Miami, Florida. In 1985 defendant sent one of

its vice presidents to Puerto Rico, where he solicited the

opportunity to finance a part of plaintiff's construction

work. Negotiations ensued; plaintiff disclosed its financial

statements, and those of its two stockholders, as proof that

it was economically sound. At some point defendant

conditioned its performance on plaintiff's acceptance of a

structure it concocted to prevent its incurring tax liability

under 13 L.P.R.A. 3231 that imposes on foreign corporations

a 29% tax on income earned in Puerto Rico, including interest

on loans to a Puerto Rico corporation. 13 P.R.L.A.

3119(a)(1). Plaintiff agreed.

The parties accordingly created a third entity,

"Redondo-USA," a Delaware corporation that would appear as

nominal borrower on defendant's credit line. Counsel for

defendant drew up the incorporation papers and mailed them to

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plaintiff in Puerto Rico. Plaintiff's president was made

president of Redondo-USA. The agreement provided that a

credit line would be extended to Redondo-USA; Redondo-USA

would then forward the funds to plaintiff for its

construction projects; plaintiff would assign the proceeds

from its construction contracts to Redondo-USA, which would

then use these funds to repay defendant. Plaintiff and its

two stockholders appeared as guarantors and "principal

obligors" on the credit line agreement.

After the execution of the agreement, the parties

largely disregarded the separate existence of Redondo-USA.

Although the agreement provided that loan payments to

defendant were to be made by Redondo-USA, in fact plaintiff

made those payments throughout, by its own checks, naming

defendant as the payee. There was no mention of Redondo-USA.

Plaintiff and defendant both certified annually to

defendant's auditors defendant's running account with

plaintiff. Again, no mention of Redondo-USA. The tri-party

agreement, made much of in defendant's brief, was a joke,

even to the participants.

In 1990 the Puerto Rico Department of Treasury

determined that plaintiff had made interest payments to

defendant of $591,332. Because 13 P.R.L.A. 3144 requires

withholding of the 29% tax from interest payments, the

Treasury assessed back taxes of $171,486, and penalty and

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interest charges of $40,277, on plaintiff. Plaintiff then

brought this action seeking compensation from defendant for

these payments. The district court found defendant liable to

plaintiff for the back taxes, but not for the penalty or

interest. Defendant appeals. We affirm.

II. Discussion

A. Jurisdiction

The district court determined that it had specific

jurisdiction over defendant on the grounds that plaintiff's

claim arose directly out of defendant's acts in the forum,

regardless of whether defendant's contacts with the forum

were sufficient to establish jurisdiction for all purposes.

We agree that there is ample basis for specific

jurisdiction. Defendant's vice president traveled to Puerto

Rico to solicit plaintiff's business. As a result of that

solicitation, plaintiff and defendant negotiated the credit

agreement. Plaintiff signed the credit agreement and was a

party to it, although it was not the nominal borrower. Under

the agreement, plaintiff incurred ongoing obligations to

defendant, not only to guarantee the loan but also to assign

its construction proceeds to Redondo-USA. Thus even under

its own characterization of the agreement, defendant had

sufficient involvement in Puerto Rico to have foreseen that

it might be sued there on disputes arising from the

agreement. International Shoe v. Washington, 326 U.S. 310

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(1945); United Elec. Workers v. 163 Pleasant St. Corp., 960

F.2d 1080 (1st Cir. 1992).

Defendant has not asserted any particular burden in

appearing in Puerto Rico rather than Florida, and Puerto Rico

has a distinct interest in having disputes under its tax code

adjudicated in Puerto Rico courts. Even if the agreement had

been strictly performed, it would not be unreasonable or

unfair, in these circumstances, to subject defendant to the

authority of a Puerto Rico tribunal. Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 476-77 (1985).

Moreover, we need not blind ourselves to the

reality behind the agreement's transparent fictions. The

agreement is no different in substance from one in which

plaintiff is the borrower. "If International Shoe stands for

anything, . . . it is that a truly interstate business may

not shield itself from suit by a careful but formalistic

structuring of its business dealings." Vencedor Mfg. Co. v.

Gougler Indus., 557 F.2d 886, 891 (1st Cir. 1977).1

B. Forum clause

In this situation defendant points to a provision

in the agreement as an escape hatch. The agreement provided

that the "Borrower and the Guarantors each hereby expressly

1. For the same reasons, we find that defendant's actions
come within the language of Puerto Rico's Long-arm statute,
32 P.R.L.A. App. III Rule 4.7(a). See Industrial

Siderurgica, Inc. v. Thyssen Steel Caribbean, Inc., 114

D.P.R. 548, 14 Official Translation 708, 721-22 n.5 (1983).

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submits to the jurisdiction of all Federal and State courts

located in the State of Florida." (Emphasis ours).

Defendant argues that this clause prohibits plaintiff from

suing in the District of Puerto Rico. This is a confusion.

Affirmatively conferring Florida jurisdiction by consent does

not negatively exclude any other proper jurisdiction. See

Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 77

(9th Cir. 1987). There is a total difference between

"expressly" and "exclusively." Even if there could be

thought to be ambiguity, its resolution must be in

plaintiff's favor. Under Florida law (by which the agreement

provides it is to be construed), as elsewhere, ambiguities

are construed against the drafter. Capital City Bank v.

Hilson, 59 Fla. 215, 219, 51 So. 853, 855 (1910). Thus even

if the agreement could have some effect upon this collateral

action, that effect, jurisdictionally, would be nil.

C. Liability

The court held that defendant was liable to

plaintiff on either of two theories: (1) because plaintiff is

entitled to repayment for having paid the debt of another, 31

P.R.L.A. 3162; or (2) because defendant was unjustly

enriched at plaintiff's expense. Each theory depends on the

assumption that defendant was the party ultimately

responsible for payment of the tax, which defendant disputes.

We note first that nothing before us indicates that

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the assessment of taxes on plaintiff by the Puerto Rico

Treasury was erroneous. Defendant makes much of the

contractual language stating that only Redondo-USA, a

Delaware corporation, shall make payments, but that language

is irrelevant on this point; the agreement does not bind the

Treasury. Defendant does not dispute that payments on the

loan were in fact made by plaintiff by check drawn on its

Puerto Rico account and that defendant accepted those

payments. This is sufficient to bring the payments squarely

within 3231 as income derived "from sources within Puerto

Rico." 13 P.R.L.A. 3231(a)(1)(A). Cf. Caribe Crown Cap

Corp. v. Secretary of the Treasury, 108 D.P.R. 857, 863-64

(1979) (translation) (source of income derived from

intangible property is place where intangible property "is

actually and effectively used"); Inter-American Orange Crush

Co. v. Secretary of the Treasury, 81 P.R.R. 286, 297-298

(1959) (source of royalty income "depends on the situs where

the personal property from which the income is derived is

really and actually used"). Moreover, the Treasury could

properly disregard the corporate status of the nominal

borrower, Redondo-USA, as merely an instrument "to evade a

clear legislative purpose." South P.R. Sugar Corp. v. Sugar

Board, 88 P.R.R. 42, 56 (1963).

Just as the transactional structure is insufficient

to shift the tax burden away from defendant by operation of

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law, it is also insufficient to show an intention to shift

that burden by agreement. Had the parties explicitly agreed

that plaintiff would be responsible for the taxes that would

otherwise fall on defendant, no further analysis would be

necessary. The parties expressed no such intention, as they

could easily have done; in fact, the agreement contains

sections entitled "Payment of Taxes" and "Payment of

Indebtedness, Taxes" in which no such terms appear. Rather,

the parties set up a two-step transaction that appears geared

more to evade the imposition of the tax altogether than to

reallocate that burden between the parties. While obviously

defendant hoped to avoid the tax, there is nothing in the

language of the agreement evidencing a mutual intent that

plaintiff take on the tax burden itself. We find no

contractual defense to the action.2

Affirmed.

2. Defendant briefly argues that once plaintiff had paid,
defendant should not have to make compensation, even if it
would initially have been responsible. The cases cited by
defendant, however, are all from jurisdictions outside Puerto
Rico and are unpersuasive in light of Puerto Rico's statutory
provision allowing recovery by one who pays the debt of
another. 31 P.R.L.A. 3162.

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