State Tax Return. It s Back.Economic Substance In The Tax Shelter Arena Federal Court Upholds Tax Assessment In Coltec

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1 October 2006 Volume 13 Number 10 State Tax Return It s Back.Economic Substance In The Tax Shelter Arena Federal Court Upholds Tax Assessment In Coltec Karen H. Currie Kirk Lyda Dallas Dallas (214) (214) [A] transaction, otherwise within an exception of the tax law, does not lose its immunity, because it is actuated by a desire to avoid, or, if one choose, to evade, taxation. Anyone may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the Treasury; there is not even a patriotic duty to increase one s taxes. Judge Learned Hand 1 Over seventy years ago Judge Learned Hand issued his oft quoted statement legitimizing tax planning and providing taxpayers with a certain unequivocal right to structure their business in the manner that best suits their tax needs. Although this premise has been repeatedly cited as the linchpin of tax planning, it has been overshadowed in recent years by the enactment of tax reform, tax shelter legislation, and importantly, increased popularity in the application of the economic substance doctrine. The economic substance doctrine is based on the idea that a transaction cannot be used as the basis for a deduction if it lacks economic substance or a realistic potential for profit. In applying the doctrine, the issue is often whether, and if so when, the literal language of a statute should be overridden because it leads to what some may view as an inappropriate result. The United States Court of Appeals, Federal Circuit, recently provided support to the economic substance doctrine by reversing the Court of Federal Claims in Coltec Industries. 1 The Court of Federal Claims had concluded that the general economic substance doctrine was unconstitutional as a violation of separation of powers in part because Congress rejected several proposals to codify the economic substance doctrine. The Court of Appeals disagreed with this conclusion, finding that the common law economic substance doctrine is binding precedent, and concluded that the transaction at issue lacked the requisite economic substance. 1 Coltec Industries, Inc. v. United States, 454 F.3d 1340 (Fed. Cir. 2006).

2 Background Coltec Industries, Inc. ( Coltec ), a maker of aircraft parts, owned two subsidiaries that were involved in a vast amount of asbestos litigation. In 1996, Coltec established a subsidiary to manage the asbestos litigation by renaming one of its dormant subsidiaries the Garrison Litigation Management Group, Ltd. ( Garrison ) and contributing certain stock and assets of the two subsidiaries, as well as a promissory note valued at slightly more than the estimated asbestos contingent liabilities of the two subsidiaries. In exchange, Garrison assumed the managerial responsibilities for handling the asbestos related claims. Subsequently, on December 20, 1996, Coltec sold a 6.6% interest in Garrison to two banks for $500, On its 1996 federal income tax return, Coltec claimed a tax basis in the Garrison stock equal to $379.2 million, which included the value of the $375 million promissory note plus other property contributed to Garrison valued at approximately $4 million, but not reduced by the liabilities assumed by Garrison. The resulting tax loss was approximately $379 million, which was used to offset the gain from the sale another Coltec subsidiary, Holley Automotive, Inc. The IRS denied the loss claiming, among other arguments, that the contingent liability transaction lacked economic substance. Coltec paid the tax and filed a refund claim. Reversing a lower court decision to the contrary, the Court of Appeals agreed with the IRS that the transaction failed the economic substance test and remanded the case to the lower court for the limited purpose of determining whether a partial refund is available with respect to the $4 million of other property contributed. What Is Economic Substance? Judges in federal and state tax cases have often had difficulty articulating the convoluted economic substance doctrine. Although the underlying theme requires the disregarding of transactions that comply with the literal terms of the tax code but lack economic reality, it is often difficult for taxpayers to know how a court will interpret the doctrine or, in the case of the Court of Federal Claims, whether the doctrine will apply at all. In Coltec, the Court of Appeals dismissed the lower court s opinion that the economic substance doctrine is inapplicable, stating that there can be no question that the court is required to follow the precedent of the Supreme Court and other courts in the district. The Court of Appeals also disagreed with the lower court s conclusion that the economic substance requirement was satisfied. 2 This structure is akin to a popular tax minimization technique utilized by taxpayers following the government s issuance of Revenue Ruling in October of In Revenue Ruling 95-74, the IRS declared that contingent environmental liabilities assumed pursuant to a transfer of assets for valid business purposes, were not included in the determination of the parent s basis in the stock received. Subsequent to the issuance of this ruling a number of companies structured transactions to generate tax losses yielding a magnitude of tax savings. In 2001 the IRS issued Notice , identifying these transactions as listed transactions. 2

3 In doing so, the court provided an interesting perspective with respect to the economic substance doctrine, concluding that a lack of economic substance is sufficient to disqualify the transaction without proof that the taxpayer s sole motive is tax avoidance. The court implied that business purpose, which is often relevant in an economic substance analysis, is separate and distinct from the objective economic substance analysis. The court also provided some guidance for determining what exactly constitutes economic substance. Specifically, the court set forth five principles to be taken into consideration when analyzing the economic substance doctrine: (1) Although Gregory v. Helvering provides taxpayers with the right to decrease or avoid taxes by means which the law permits, the law does not permit a taxpayer to reap benefits from a transaction that lacks economic reality; (2) In the case of deductions, it is the taxpayer who bears the burden of proving that the transaction has economic substance; (3) Economic substance must be viewed objectively rather than subjectively; (4) The transaction to be analyzed must be the one that gave rise to the alleged tax benefit; and (5) Arrangements with subsidiaries that do not affect the economic interest of independent third parties deserve particular scrutiny. In an area that seems to have evolved into a catch-all doctrine where any transaction that has a tax avoidance motive can be defeated, these principles, though not exhaustive, should assist taxpayers in avoiding economic substance challenges in the future. Split Of Authority On Business Purpose The Coltec decision notes an interesting dichotomy with respect to whether business purpose is part of the economic substance doctrine. There is a split of authority, as to whether the economic substance analysis includes a business purpose requirement. As recently as this year, the Fourth Circuit held that the appropriate analysis is a two part test, which requires a court to find (1) the taxpayer was motivated by no business purpose other than obtaining tax benefits, and (2) the transaction had no economic substance because no reasonable possibility of profit exists. 3 However, several other circuits, including the Federal Circuit in Coltec have expressly held that a lack of economic substance is sufficient to disqualify the transaction without proof that the taxpayer s sole motive is tax avoidance. 4 There appears to be a lack of consensus among the courts in this area and thus, a lack of reliable guidance for taxpayers. The Facts Are Important For Coltec, avoiding an economic substance challenge was an uphill battle from the start. According to the court, the transaction at issue was the assumption of asbestos 3 See Black & Decker Corp. v. United States, 436 F.3d 431 (4 th Cir. 2006). 4 See United Parcel Service of America, Inc. v. Commissioner, 254 F.3d 1014 (11 th Cir. 2001); Dow Chemical Co. v. United States, 435 F.3d (6 th Cir. 2006). 3

4 liabilities in exchange for the $375 million promissory note. Coltec had the burden proving that this transaction had an economic reality. One of the primary challenges for Coltec was the fact that the structure was admittedly motivated by tax avoidance. The structure was put into place on the advice of Coltec s tax advisors after a significant gain was recognized on the sale of another business unit. The goal was clearly to come up with a structure that would minimize the tax impact of the sale. Although Coltec pointed to several non-tax reasons for the structure (i.e., adding an additional barrier to veil-piercing claims and making Coltec more attractive as an acquirer), these reasons were overshadowed by the tax avoidance motivation evidenced in large part by the fact that the amount received on the sale was only slightly greater than half the transaction costs for setting up the structure in the first place. Although the court concluded tax avoidance was irrelevant, it seems likely that the tax motivation could have been a contributing factor. The most significant challenge for Coltec was likely the fact that Coltec agreed to indemnify the banks against any veil piercing claims thereby nullifying the banks ownership rights with respect to the Garrison stock. This is further supported by the fact that the banks insisted the transactions be kept confidential. The court ultimately looked to these facts in concluding that there was nothing indicating that the transfer of liabilities in exchange for a note effected any real change in the flow of economic benefits or provided any real opportunity to make a profit and thus lacked economic substance. There Are Two Sides To Every Story The court seems to have gone to great lengths to view the facts through a prism bent toward the IRS. Coltec identified the need to separate its asbestos liability management operations from its other daily operations in 1991, well before Coltec realized the subsequent gain in Initially, Coltec decided to create a unit within an existing subsidiary that would be solely responsible for managing asbestos litigation and relations with insurance carriers. Timothy O'Reilly, an experienced asbestos defense litigator, was hired to head the new unit, which became operational on April 1, At that time, the insurance carriers were rapidly exhausting their coverage. O'Reilly organized a consortium of the four largest remaining carriers to develop ways of reducing the dissipation of insurance funds so quickly. An internal staff of lawyers and paralegals was hired and primary control of the litigation was taken in-house. O Reilly convinced several insurance carriers to pay the company lump sum amounts to settle all existing and future asbestos claims in cancellation of the policies. The proceeds were used to satisfy future judgments, settlements, and associated defense costs. Indeed, by June 1995, O Reilly was successful in persuading ten of the company s twenty-eight carriers to cover a portion of the asbestos litigation department s costs, by threatening to turn the department into a law firm. In late 1995, company officials began considering the formation of a new subsidiary to further centralize management of the asbestos defense litigation. The plan was to transfer those operations to a new subsidiary, including responsibility for paying the asbestos related claims, together with sufficient capital to pay those contingent 4

5 liabilities. The company s tax advisors, presumably in reliance on the IRS stated position in Revenue Ruling (issued in late 1995), suggested that this particular manner of accomplishing further centralization of the litigation management would have a tax benefit associated with it, as long as it was done for valid business purposes. As if the business purpose of further centralizing the asbestos litigation assets, contingent liabilities, and management in an entity devoted solely to those operations was not self evident, the President of the companies believed that the proposed transaction could further achieve operational objectives that he had been pursuing since he became President and CEO of the Coltec Group, as well as be helpful in recovering the costs of litigation management from the insurers. O'Reilly concurred, primarily because it would help O'Reilly better identify and allocate costs so that additional insurance carriers might agree to contribute to the costs of managing the asbestos liabilities and potentially focus plaintiffs' attorneys on one pocket for recovery. Indeed, not even the attorneys for the IRS had the gall to question whether the transfer of the management activities had economic substance. It clearly did. The Court of Appeals sidestepped those problematic aspects of the IRS case by dicing up the transaction in question. Rather than focusing on the transaction as a whole, including the transfer of the management of the litigation, the transfer of the contingent liabilities associated with the litigation, and the transfer of the note for use in paying claims related to the litigation, the Court of Appeals focused solely on the transfer of the contingent liabilities in exchange for the $375 million note. Perhaps, as the court suggests, there was no clear profit motive, or independent business purpose, for transferring the liabilities with the assets to pay the liabilities. As the court went out of its way to point out, the banks that bought a portion of Garrison s stock only paid a nominal amount, suggesting that there was no positive inherent value in Garrison. But, that seems like a fairly narrow view of the overall transaction, which the Government admitted had economic substance. The taxpayer could have transferred just the litigation management functions the IRS presumably would have had no problem with that. The taxpayer could have transferred the management functions and the note the IRS presumably would have had no problem with that either. Just because the taxpayer transferred the remaining piece of the puzzle the related contingent liabilities should not result in the transaction being treated as a sham for lacking economic substance. True, including the contingent liabilities results in tax benefits, but [a]nyone may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the Treasury; there is not even a patriotic duty to increase one s taxes. The tax benefit associated with the overall transaction that the taxpayer engaged in, at least in part, for substantial non-tax business reasons, is what is mandated by the statutes, as both the Court of Federal Claims and the Court of Appeals correctly found. Perhaps the common law economic substance doctrine does not violate separation of powers norms in the typical sham case, but applying the doctrine in the face of statutes mandating the treatment accorded by the taxpayer, in the face of conceded business purpose and economic substance for the overall transaction, may be taking it a bit too far. 5

6 What Does This Have To Do With State Tax? More and more state agencies have applied the economic substance doctrine in analyzing complex tax structures particularly when faced with a variety of tax planning strategies that may be regarded abusive. Judges in state tax cases have increasingly been asked to consider the propriety and application of the economic substance doctrine and, in doing so, have often looked to federal case law as guidance, including cases such as Coltec. For state tax purposes, the economic substance doctrine is most often noted in the context of intellectual property holding companies ( IHCs ). IHCs are special purpose entities set up to manage and hold a company s intellectual property and license such property back for use in the business in exchange for royalties. In addition to a number of non-tax business purposes, these companies are often set up for state tax purposes by locating the IHC in a non-tax jurisdiction, thereby shifting income from the states that impose a tax to those states that are tax exempt. States that impose income taxes started challenging these transactions in the mid to late 1980s and have continued to do so under a number of taxing theories, including the economic substance doctrine. Similar to the federal courts, taxpayers will face challenges in predicting how state courts will interpret the economic substance doctrines in the IHC and other state tax contexts. Like the lower court in Coltec, some state courts have refused to apply the economic substance doctrine even when faced with clear evidence of tax motive, leaving it up to the legislature to fix any perceived abuse of the system. Other courts have applied the economic substance doctrine but only when compelled by clear evidence. The uncertainty is certain to continue until additional guidance is provided. Several state legislatures have attempted to codify the economic substance and similar doctrines. In 2002, Massachusetts passed a law providing the commissioner with the authority to disallow the asserted tax consequences of a transaction by applying the sham transaction doctrine or any other related doctrine, where the taxpayer has the burden of proving by clear and convincing evidence that the transaction possessed both a valid good-faith business purpose, as well as economic substance apart from the asserted tax benefit. 5 Ohio has adopted a similar statute providing the tax commissioner with the authority to disregard any sham transaction, which is defined as a transaction without economic substance because there is no business purpose or expectation of profit other than obtaining tax benefits. 6 It remains to be seen whether these statutes will lead to more or less litigation. Where We Go From Here There seems to be little doubt that the economic substance doctrine is here to stay. The more appropriate question is how the doctrine will be applied. There are clearly a myriad of interpretations of the economic substance doctrine and absent a clear 5 Mass. Gen. Laws ch. 62C, 3A. 6 Ohio Rev. Code Ann

7 statement from the United States Supreme Court, courts are likely to continue to apply a multitude of approaches. For a taxpayer structuring its business, it is still important to focus on the non-tax business purpose of any transaction and ensure that each transaction is implemented in such a way as to reinforce economic reality particularly with intercompany transactions. Until additional guidance is issued, the best approach may be to follow the state of law within the applicable circuit. This article is reprinted from the State Tax Return, a Jones Day monthly newsletter reporting on recent developments in state and local tax. Requests for a subscription to the State Tax Return or permission to reproduce this publication, in whole or in part, or comments and suggestions should be sent to Susan Ervien (214/ or shervien@jonesday.com) in Jones Day s Dallas Office, 2727 N. Harwood, Dallas, Texas Jones Day All Rights Reserved. No portion of the article may be reproduced or used without express permission. Because of its generality, the information contained herein should not be construed as legal advice on any specific facts and circumstances. The contents are intended for general information purposes only. 7