F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 10 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
GREGORY F. FLOYD and DENISE
D. FLOYD, doing business as Medical
Information Services; HAROLD
DEAKINS and LYNNE DEAKINS,
doing business as K and L Computers;
RHONDA SIPPEL, doing business as
Statbilling; JERRY NEVONEN, doing
business as Network Facilities;
WILLIAM MUTH, doing business as
Electronic Billing Services; JACKIE
RAY, doing business as Medical
Billing Service; THOMAS PERRY,
No. 96-3166
doing business as TurboClaim,
Plaintiffs - Appellants,
v.
INTERNAL REVENUE SERVICE of
the United States of America; STATE
OF KANSAS ex rel. Carla Stovall,
Attorney General; 12424 ABERDEEN,
JOHNSON COUNTY, KANSAS, a
certain piece of real estate,
Defendants - Appellees.
GREGORY F. FLOYD, DENISE D.
FLOYD, doing business as Medical
Information Services; HAROLD
DEAKINS, LYNNE DEAKINS, doing
business as K and L Computers;
RHONDA SIPPEL, doing business as
Statbilling; JERRY NEVONEN, doing
business as Network Facilities;
WILLIAM MUTH, doing business as
Electronic Billing Services; JACKIE
RAY, doing business as Medical
Billing Service; THOMAS PERRY,
doing business as TurboClaim,
Plaintiffs - Appellees,
and
INTERNAL REVENUE SERVICE of
No. 96-3215
the United States of America,
Defendant - Appellee,
v.
STATE OF KANSAS ex rel. Carla
Stovall, Attorney General,
Defendant - Appellant,
and
12424 ABERDEEN, JOHNSON
COUNTY, KANSAS, a certain piece
of real estate,
Defendant.
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Appeal from the United States District Court
for the District of Kansas
(D.C. No. 95-2177-JWL and 95-CV-2177)
Edward A. McConwell (Laura L. McConwell with him on the brief), McConwell
Law Offices, Overland Park, KS, for Gregory F. and Denis D. Floyd, Harold and
Lynne Deakins, Rhonda Sippel, Jerry Nevonen, William Muth, Jackie Ray and
Thomas Perry.
Martin J. Peck, Special Assistant Attorney General, Wellington, KS, for the State
of Kansas.
Theodore M. Doolittle (Kenneth L. Greene with him on the briefs), Department of
Justice, Washington, D.C., for the Internal Revenue Service.
Before HENRY, and LUCERO, Circuit Judges, and MILES-LaGRANGE,
District Judge. *
LUCERO, Circuit Judge.
Thomas Bridges and his associated companies are in debt to three parties:
the Internal Revenue Service (“IRS”), the State of Kansas, and a group of private
judgment-creditors, the “Floyd plaintiffs.” These three parties sought judicial
resolution of the priority of their claims to the assets of Bridges and his
companies. Following a bench trial, the District Court for the District of Kansas
held that the IRS claims primed those of the other two parties, and that, as to the
*
The Honorable Vicki Miles-LaGrange, United States District Judge for the
Western District of Oklahoma, sitting by designation.
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remaining assets, Kansas took priority over the Floyd plaintiffs. The district
court’s holding was premised in part on the IRS’s position that one of Bridges’s
companies was his alter ego. Because we find that the district court erred in
accepting the IRS’s alter ego argument, we reverse and remand.
I
In 1991, Thomas Bridges founded two corporations, Network Billing
Centers, Inc. (“NBC”) and Med-Net Technologies, Inc. (“Med-Net”), both in the
business of licensing and developing computer software. Bridges, who was the
sole shareholder and director of these companies, had complete control over them.
Bridges’s salary from NBC was paid into the account of Thomas Marketing, Inc.
(“TMI”), another corporation founded and controlled by him and of which he was
the sole shareholder and director.
The IRS’s claims against Bridges and his associated companies date from
Bridges’s failure to pay personal income tax in 1984. The IRS first filed a Notice
of Federal Tax lien against Bridges in 1990. In 1993, the IRS filed additional tax
liens against Bridges as a result of his failure to pay personal income tax between
1988 and 1991. The following year, the IRS filed two tax liens against Med-Net
for failing to pay employment taxes for the second and third quarters of 1993.
Kansas’s claims are based on a pre-judgment attachment of Med-Net, NBC, and
TMI accounts following the filing of an action by the State against Bridges, Med-
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Net, and NBC under the Kansas Consumer Protection Act (“KCPA”). Kansas
won this action in late March 1994, obtaining judgment for just under $1 million.
The Floyd plaintiffs’ claim is based on their successful suit against Bridges, NBC,
and Med-Net for fraud and breach of contract. They secured judgment in early
March 1994.
These three creditors dispute their priority to two groups of assets: first,
some $179,000, which constitutes proceeds from the sale of a house in Lenexa,
Kansas, held in the registry of the United States District Court for the District of
Kansas pursuant to a settlement between the three creditors; second, some
$84,000 from the Med-Net, NBC, and TMI accounts attached by Kansas, which is
held in the registry of the District Court of Johnson County. 1
The Lenexa house was purchased using primarily Med-Net funds in 1992.
Bridges’s daughter, Brooke Bridges McBride, filed an affidavit of equitable
interest in the property with the register of deeds in Johnson County; legal title
was apparently to pass from the construction company to McBride pursuant upon
1
The total amount seized was approximately $155,000. This sum was reduced
pursuant to an agreement in August 1994 between the Floyd plaintiffs and the State to
around $84,000.
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full payment under a contract for deed. 2 Both Bridges and McBride lived in the
house.
In April 1994, after obtaining judgment against Bridges, Med-Net, and
NBC under the KCPA, Kansas filed another state court action, which was
subsequently joined by the Floyd plaintiffs, alleging that McBride had received
the house through a fraudulent conveyance from Med-Net and NBC. Shortly
thereafter, the Floyd plaintiffs unsuccessfully attempted to collect on their
judgment against Bridges, Med-Net, and NBC by garnishing McBride, arguing
that Med-Net held its interest in her name. To resolve their claims to the house,
Kansas, McBride, and the Floyd plaintiffs entered into a settlement whereby the
house was to be sold, with the bulk of the proceeds to be contested among the
competing creditors. After filing a lien against the house naming McBride as
Bridges’s nominee, the IRS subsequently joined this settlement, and the house
was sold.
II
The district court accepted the IRS’s arguments that Med-Net was
Bridges’s alter ego and that McBride held the house as Bridges’s nominee. With
The handwritten version of this contract listed Bridges and McBride as
2
purchasers. A typed version prepared the same day lists only McBride. The district court
determined Bridges had his name removed because he did not want the IRS to put a lien
on the house.
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one exception, therefore, the federal tax liens had been filed against Bridges and
Med-Net before either of the other creditors had secured their judgments against
Bridges and his associated companies. 3 Consequently, acting on the principle that
“priority for purposes of federal law is governed by the common-law principle
that ‘the first in time is the first in right,’” United States v. McDermott, 507 U.S.
447, 449 (1993) (quoting United States v. New Britain, 347 U.S. 81, 85 (1954)),
the district court held that the IRS’s claims to the house proceeds primed the
claims of both Kansas and the Floyd plaintiffs. Because the IRS’s claims, which
amounted to some $186,000, exhausted the sale proceeds entirely, the district
court did not determine the relative priority of the other two creditors’ claims to
the house.
The district court further held that the remaining $7,000 still owing to the
IRS should be satisfied from the seized bank accounts, of which it concluded
some $136,000 was traceable to Bridges and his alter ego Med-Net. As to the
remaining bank account funds, the district court found that the State perfected its
attachment lien when it won a favorable judgment in its KCPA suit. Because the
State perfected its interest in the funds before the Floyd plaintiffs executed their
3
The exception is the federal tax lien filed against Med-Net for its failure to pay
employment taxes for the third quarter of 1993. The IRS does not appeal the district
court’s holding that both Kansas and the Floyd plaintiffs’ claims have priority over this
claim.
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judgment liens against those same funds, the district court concluded that Kansas
had priority over the Floyd plaintiffs to whatever funds remained. Kansas and the
Floyd plaintiffs both appeal.
III
Federal tax liens only arise in property as to which the defaulting taxpayer
has rights of ownership. See United States v. Wingfield , 822 F.2d 1466, 1472
(10th Cir. 1987). State law determines such rights. See United States v. Central
Bank of Denver , 843 F.2d 1300, 1303-04 (10th Cir. 1988). Federal law then
determines the priority of competing liens against a taxpayer’s property. See
Aquilino v. United States , 363 U.S. 509, 514 (1960).
Both Kansas and the Floyd plaintiffs argue that Bridges had no rights to the
Lenexa house, thus placing that property beyond the reach of the tax liens filed by
the IRS against Bridges. More specifically, the Floyd plaintiffs argue that the
house was properly owned by Med-Net, and because Med-Net was not Bridges’s
alter ego, the house is properly claimable only by Med-Net creditors. Kansas, for
its part, argues that Bridges fraudulently conveyed the house to McBride, leaving
him without a valid claim to the property under state law.
The district court determined that Med-Net was the alter ego of Bridges
based on Pemco, Inc. v. Kansas Dep’t of Revenue , 907 P.2d 863 (Kan. 1995). If
we accepted Pemco as the controlling authority in this case, we would review that
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determination deferentially. See G.M. Leasing Corp. v. United States, 514 F.2d
935, 939 (10th Cir. 1975) (district court’s finding of alter ego status
“presumptively correct and must be left undisturbed on appeal unless . . . clearly
erroneous”), rev’d in part on other grounds, 429 U.S. 338 (1977). And were we
to do so, we would conclude that the evidence before the district court manifestly
supported its conclusion that the “relationship” between Bridges and Med-Net
was “so intimate,” Bridges’s “control” over Med-Net “so dominating,” and “the
business and assets of the two are so mingled that recognition of [Med-Net] as a
distinct entity would result in an injustice to third parties.” Pemco, 907 P.2d at
867 (quoting Doughty v. CSX Transp., Inc., 905 P.2d 106, 111 (Kan. 1995)). We
also would not find error in the district court’s conclusion that crediting Med-Net
with a separate corporate identity would sanction Bridges’s unjust evasion of his
federal tax liability.
But Pemco does not appropriately govern this case. The Pemco court
considered a parent company’s request to be treated as a single unit with its
corporate subsidiary for sales tax purposes. Ultimately, the court refused that
request because “a corporation, having chosen the legal form in which to exist
and do business, should not be permitted to pierce its own corporate veil to gain a
tax advantage.” Id. at 866. That rule does not speak to the case of an outside
entity—here, the IRS—seeking to pierce the corporate veil.
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True, Pemco does recite Kansas’s “substantial case law authorizing the
piercing of a corporate veil if to do otherwise would work an injustice on third
parties.” Id. at 867. Those precedents, however, are inapplicable here because
they consider the “standard” veil-piercing situation, in which corporate creditors
seek to disregard the corporate form in order to hold stockholder assets liable for
the corporation’s debts. In this case, we are presented with the reverse
phenomenon because the IRS seeks to pierce Med-Net’s veil and use corporate
assets to satisfy the obligations of an individual stockholder. Cf. Towe Antique
Ford Found. v. IRS , 999 F.2d 1387, 1390 (9th Cir. 1993) (“Ordinarily, courts are
called upon to apply the alter ego doctrine in cases where a party seeks to hold an
individual liable for a business entity’s debts.”); Cascade Energy & Metals Corp.
v. Banks , 896 F.2d 1557, 1575 (10th Cir. 1990) (stating that reverse-piercing
theory employed by district court “led to the peculiar result of holding the
corporation liable for the debts or torts of its controlling shareholder rather than
the other way around”) (emphasis added). The IRS’s claims, in which an outside
party seeks to meld the stockholder and the corporation into one, represent a
“variant” on the usual “reverse-piercing” claim, in which an insider asserts that
theory. See Cascade , 896 F.2d at 1575 n.17; see also Gregory S. Crespi, The
Reverse Pierce Doctrine: Applying Appropriate Standards , 16 J. Corp. L. 33, 37-
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38 (1991) (“Crespi”) (distinguishing between inside and outside reverse-piercing
claims).
The Floyd plaintiffs urge us to reject this outside reverse veil-piercing
theory, at least where third-party corporate creditors would thereby be harmed.
The government counters that numerous cases recognize such a practice in the
federal taxation context. See No. 96-3166, IRS’s Br. at 30 (citing, e.g., Towe ,
999 F.2d at 1390-91). But the question of whether Med-Net can be found to be
Bridges’s alter ego for purposes of reverse veil-piercing must be answered by
state law, see Towe , 999 F.2d at 1391; Terrapin Leasing, Ltd. v. United States ,
No. 79-1086, 1981 WL 15490, at *2 (10th Cir. Apr. 6, 1981), and none of the
authorities cited by the government are drawn from that body of jurisprudence.
Nor does the taxation context of the government’s claim dictate the outcome here.
“The IRS should be viewed as any other creditor seeking to pierce a corporate
veil that is allegedly defrauding it of its legitimate claim.” Terrapin , 1981 WL
15490, at *2.
In fact, there are significant reasons to resist application of the alter ego
doctrine in this case. The IRS has presented no authority suggesting that Kansas
does or would recognize an outside reverse-piercing claim, and our own review of
Kansas law provides no authoritative support for that proposition. See Cascade ,
896 F.2d at 1577 (holding that, “[a]bsent a clear statement” by state supreme
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court adopting outside reverse-piercing theory, federal court will not reverse
pierce). 4
In addition, “[t]he reverse-pierce theory presents many problems.” Id. In
Cascade , we noted two. First, the theory “bypasses normal judgment-collection
procedures whereby judgment creditors attach the judgment debtor’s shares in the
corporation and not the corporation’s assets.” Id. Second, third parties may be
unfairly prejudiced if the corporation’s assets can be attached directly. Although
in Cascade our particular concern was with non-culpable third-party shareholders
of the corporation being unfairly prejudiced, no greater culpability should attach
to the third-party corporate creditors harmed by reverse-piercing in this case. See
id. (“‘[A] necessary element of the [alter ego] theory is that the fraud or inequity
sought to be eliminated must be that of the party against whom the doctrine is
invoked, and such party must have been an actor in the course of conduct
4
The Kansas courts did once apply a variant of reverse piercing—but only in a
jurisdictional context. In Farha v. Signal Cos., 532 P.2d 1330, modified, 535 P.2d 463
(Kan. 1975), the Supreme Court of Kansas upheld a finding of personal jurisdiction
against a corporation, which was not otherwise reachable under the Kansas long-arm
statute, on the grounds that its co-defendant parent corporation transacted business within
the state. While that decision contains alter ego and veil-piercing language, it does not
contain any indication whatsoever that the subsidiary’s assets were reachable as a result
of the parent’s substantive liability. As in personam jurisdiction can be asserted
whenever a defendant has those “minimum contacts” with the forum state that will satisfy
“‘traditional notions of fair play and substantial justice,’” International Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463
(1940)), the Farha decision is best understood as limited to the jurisdictional context;
these jurisdictional standards should not be presumed to translate into substantive
corporate law.
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constituting the abuse of corporate privilege— the doctrine cannot be applied to
prejudice the rights of an innocent third party .’”) (quoting 1 William Meade
Fletcher et al., Fletcher Cyclopedia of the Law of Private Corporations § 41.20, at
413 (1988 Supp.)) (emphasis added); see also Hamilton v. Hamilton Properties
Corp. , 186 B.R. 991, 1000 (Bankr. D. Col. 1995) (“The reverse piercing theory is
an aberration which, if invoked, would prejudice . . . the rightful creditors of the
corporation whose assets are subsumed for the benefit of the creditors of the
individual. What of the creditors of [the corporation] who relied on its separate
corporate existence in doing business with it?”); Cargill, Inc. v. Hedge , 375
N.W.2d 477, 479 (Minn. 1985) (holding that in considering propriety of reverse
pierce, “[a]lso important is whether others, such as a creditor or other
shareholders, would be harmed by a pierce”).
There are reasons beyond those identified in Cascade to deny an alter ego
claim of this kind. For one thing, the prospect of losing out to an individual
shareholder’s creditors will unsettle the expectations of corporate creditors who
understand their loans to be secured—expressly or otherwise—by corporate
assets. Corporate creditors are likely to insist on being compensated for the
increased risk of default posed by outside reverse-piercing claims, which will
reduce the effectiveness of the corporate form as a means of raising credit.
Furthermore, as Judge Learned Hand suggested in what may be the earliest case to
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consider such a claim, outside reverse piercing is only appropriate in the rare case
of a subsidiary dominating its parent. See Kingston Dry Dock Co. v. Lake
Champlain Transp. Co. , 31 F.2d 265, 267 (2d Cir. 1929); see also Crespi at 67
(“Kingston stands for the proposition that the highly unusual circumstance of a
subsidiary dominating its parent is a virtual prerequisite for finding the kind of
unity that would allow an outside[] reverse pierce . . . .”); id. at 57, 65-66. Here,
the premise of the IRS’s position is that the effective subsidiary—Med-Net—was
the dominated party, which makes it hard, if not impossible, to argue for
forfeiture of its assets through a reverse pierce. Additionally, disregard of the
corporate form is an equitable remedy. See McKinney v. Gannett Co. , 817 F.2d
659, 666 (10th Cir. 1987). As a consequence, it is appropriately granted only in
the absence of adequate remedies at law. See 1 William Meade Fletcher et al.,
Fletcher Cyclopedia of the Law of Private Corporations § 41.25, at 653 (perm. ed.
rev. vol. 1990). In cases where a corporation has been dominated by a controlling
stockholder, an agency or aiding and abetting theory may suffice to hold the
corporation liable for the actions of that stockholder. See Crespi at 65. Standard
judgment collection procedures may also suffice to cover shareholder liability
without expanding equitable theories of corporate liability. See Cascade , 896
F.2d at 1577. And, in taxation cases, the transfer of an economic benefit to a
shareholder may be reachable for tax purposes as a constructive dividend, again
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obviating the need for the more drastic remedy of corporate disregard. See
generally 10 Jacob Mertens, Jr. et al., The Law of Federal Income Taxation §
38B.33 (1991).
We recognize that the problems associated with reverse-piercing may be
viewed as less serious in cases where a corporation is controlled by a single
shareholder—there are, for instance, no third-party shareholders to be unfairly
prejudiced by disregarding the corporate form. Should the Kansas courts consider
adopting the doctrine of reverse-piercing, that factor may well influence the terms
of any rule they ultimately adopt. Consequently, we stress that in reciting the
litany of problems associated with the doctrine, we should not be understood as
seeking to dictate or influence the law of corporations in Kansas. Rather, we seek
only to lend additional weight to Cascade ’s federal law conclusion that, in the
absence of a clear statement of Kansas law by the Kansas courts, we will not
assume that such a potentially problematic doctrine already has application in that
state. See Cascade , 896 F.2d at 1577.
IV
The lion’s share of the district court’s analysis of this complex litigation is
premised on its finding that Med-Net was Bridges’s alter ego. The district court’s
conclusion that McBride held title to the house as Bridges’s nominee depends on
its underlying finding that Bridges purchased the house through his alter ego
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Med-Net. Similarly, the determination of priority to the bank account proceeds
assumes that the IRS satisfies the bulk of its claims by means of the proceeds
from the sale of the house. If that latter determination is undone, then the IRS’s
claims to the bank account funds, or the resolution of the other parties’ claims to
the house proceeds, may impact the district court’s determination that Kansas
would receive the bulk of the bank account funds.
However, the district court’s opinion need not inexorably unravel with our
holding here because the IRS also brought a constructive dividend claim. That
claim, if adjudged successful, might lead to the same conclusion as to the
ownership of the house and the court’s subsequent determinations flowing
therefrom. The district court did not rule as to whether Med-Net’s purchase of
the house was a constructive dividend to Bridges. As the record on appeal
contains no indication that the facts relevant to a constructive dividend
determination are undisputed, we cannot decide this question as a matter of law,
and it must instead be resolved in the first instance by the trial court below. Cf.
Dolese v. United States , 605 F.2d 1146, 1153 (10th Cir. 1979). We are therefore
obliged to remand for further proceedings.
REVERSED and REMANDED for further proceedings consonant with the
views herein expressed.
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