Fifth Circuit Civil Appellate Update

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1 Christopher D. Kratovil, K&L Gates, Dallas Stephen M. Dacus, K&L Gates, Dallas CIVIL PRACTICE / PERSONAL JURISDICTION Walk Haydel & Assoc., Inc. v. Coastal Power Prod. Co., 517 F.3d 235 (5th Cir. 2008) Walk Haydel & Assoc. v. Coastal Power Production Co. addresses an interesting personal jurisdiction issue that could impact lawyers whose practices cross state boundaries. A Louisiana corporation doing business as Delasa acquired a contract for the construction of a power plant in El Salvador. Delasa originally planned to develop this power plant along with several other joint venturers. Winston & Strawn (W&S), a Chicagobased law firm, was allegedly hired to represent all of the joint venturers in their dealings with third parties. The joint venture s main investor soon lost interest in continuing with the joint venture. Soon thereafter, W&S suggested that an entity named Tenneco might serve as a replacement investor and provide capital to the joint venture. At that time, W&S was representing Tenneco in other projects in Latin America. Delasa met with Tenneco and eventually Tenneco was brought into the joint venture. After the deal unraveled, Tenneco stepped in and acquired 100% of the project and W&S continued to represent Tenneco in the project. Litigation ensued in Louisiana state court, and Delasa ultimately filed a third party complaint against W&S. W&S removed the case to federal court and then moved to dismiss, arguing that it was not subject to personal jurisdiction in the state of Louisiana. The district court agreed, and dismissed the action against W&S. Delasa appealed. On appeal, the Fifth Circuit reversed the district court s finding that W&S was not subject to personal jurisdiction in Louisiana. The Court began by discussing the applicable rules. Though the plaintiff must ultimately show by a preponderance of evidence that the court has personal jurisdiction over the defendant, the plaintiff was only required to make a prima facie Fifth Circuit Civil Appellate Update showing of personal jurisdiction where, as here, the court only allows limited discovery on the issue of personal jurisdiction. The district court may hold a full evidentiary hearing at which the plaintiff must prove personal jurisdiction by a preponderance. However, in order to hold the plaintiff to this higher standard, the court must allow the plaintiff to take a greater amount of discovery and give the plaintiff the benefit of live testimony and other forms of discovery. Here, the district court curtailed Delasa s right to take discovery and only allowed Delasa to obtain documents from W&S. Thus, the Court found, the district court erred in requiring Delasa to prove personal jurisdiction by a preponderance based solely on these limited discovery materials. Addressing the core jurisdictional issue, the Court found that Delasa had established a prima facie case for specific personal jurisdiction over W&S. The Court set out the familiar due process standard for general personal jurisdiction, which permits the court to exercise personal jurisdiction over a nonresident when (1) the defendant has purposefully availed itself of the benefits and protections of the forum state by establishing minimum contacts with the forum state, and (2) the exercise of jurisdiction over that defendant does not offend traditional notions of fair play and substantial justice. The Court also reviewed the requirements for specific jurisdiction, which exists where the defendant has purposefully directed its activities at a forum state and the litigation results from alleged injuries that arise out of or relate to those activities. Applying this standard, the Court found that personal jurisdiction in Louisiana was proper. Although forming an attorney-client privilege with a Louisiana corporation was not enough on its own, specific jurisdiction was proper under Fifth Circuit precedent which holds that a nonresident attorney s misrepresentations and omissions directed at the forum state are sufficient Page 228 The Appellate Advocate

2 to support personal jurisdiction. Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, (5th Cir. 2001). When the disputed facts were construed in Delasa s favor, the facts showed that the litigation related to activities and omissions directed at Louisiana. The Court emphasized that a single trip by W&S to New Orleans could be enough to support a finding of minimum contacts. W&S s connection with Louisiana was further supported by W&S s hundreds of phone calls, faxes, and letters amounting to over 3,400 pages of documents, many of which were sent by W&S to Delasa s office in Louisiana. The Court emphasized that the foreseeable harmful effects of W&S s alleged tortious conduct were aimed at Louisiana. Based upon this evidence, the Court found that Delasa established a prima facie case of specific jurisdiction in Louisiana, and accordingly reversed and remanded to the district court. CIVIL PRACTICE / VENUE In Re: Volkswagen, 506 F.3d 376 (5th Cir. Oct. 24, 2007), reh g en banc granted by 517 F.3d 785 (5th Cir. 2008) Three plaintiffs filed a products liability action against Volkswagen in the Marshall Division of the U.S. District Court for the Eastern District of Texas. The plaintiffs were injured in a car accident that occurred in Dallas, Texas, and the plaintiffs alleged that their injuries were caused by design defects in the Volkswagen vehicle that they were driving. Volkswagen moved to transfer the case pursuant to 28 U.S.C. 1404(a) to the Dallas Division of the Northern District of Texas and asserted that the transfer was warranted because all of the factors relevant to a transfer of venue clearly pointed to venue in the Northern District of Texas. According to Volkswagen, the only factor that favored venue in the Eastern District of Texas was the plaintiffs decision to file there; otherwise, Marshall has no connection to the parties or the case. The district court denied the motion to transfer venue. Volkswagen petitioned to the Fifth Circuit for a writ of mandamus directing the district court to transfer the case to the Northern District of Texas. A Fifth Circuit panel initially declined to issue the writ, but later withdrew the decision. After holding oral arguments, the Court issued the writ of mandamus and directed the district court to transfer the case to the Northern District of Texas. The Court began its analysis by stressing the extraordinary nature of writs of mandamus. However, the Court held that mandamus was appropriate in this case because the district court clearly and indisputably abused its discretion in refusing to transfer the case. The Court set out the applicable standard for a transfer of venue. In assessing a motion to transfer, the preliminary question is whether the suit could have been originally filed in the destination venue. This threshold was clearly met here, so the Court next turned to the requirements set forth in 28 U.S.C. section 1404(a). Section 1404(a) provides that [f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. Under Fifth Circuit precedent, the determination of whether to transfer a case requires the court to assess a number of private and public interest factors, none of which is dispositive standing alone. The private interest factors are: (1) the relative ease of access to sources of proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive. The public interest factors are: (1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws or in the applicable foreign law. The Court recognized that the plaintiff s choice of forum is also a relevant factor to be considered in the analysis, and indeed the court held that the plaintiff s choice of forum is entitled to deference. The Court was required to consider, however, exactly how much weight was to be accorded to the plaintiff s choice of forum. Applying an Page 229 The Appellate Advocate

3 earlier binding precedent, the Court held that the party seeking to transfer a case under Section 1404 must show good cause for the transfer. Humble Oil & Ref. Co. v. Bell Marine Serv. Inc., 321 F.2d 53, 56 (5th Cir. 1963). This requires the moving party to demonstrate that the transfer is [f]or the convenience of the parties and witnesses, in the interests of justice. 28 U.S.C. 1404(a). The Court held that this good cause standard comports with the language and the express purposes of Section The Court then went through the private and public interest factors and held that each of the applicable factors weighed heavily in favor of transfer to the Northern District of Texas, and therefore, the district court erred in applying these factors. The Court held that the district court abused its discretion in refusing to transfer the case and, accordingly, remanded the case to the district court with instructions to transfer the case to the Northern District of Texas. On February 14, 2008, the Fifth Circuit vacated this decision and ordered en banc rehearing. The case has been set for oral arguments before the en banc Court the week of May 19, EMPLOYMENT LAW / DISCRIMINATION / EXHAUSTION OF ADMINISTRATIVE REMEDIES McClain v. Lufkin Indus., Inc., 519 F.3d 264 (5th Cir. 2008) In McClain v. Lufkin Industries, Inc., the Fifth Circuit addressed a complex and important Title VII issue in which some 700 class action plaintiffs argued that defendant Lufkin Industries, Inc. s ( Lufkin ) policy of delegating subjective decision-making authority to its managers disparately impacted African-American employees. Lufkin is a major manufacturing corporation that consists of four production divisions, including the Foundry, Trailer, Oil Field, and Power Transmission divisions. Two of the representative plaintiffs filed charges against Lufkin with the (Equal Employment Opportunity Commission (EEOC). One of these plaintiffs, McClain, worked in Lufkin s Trailer division, and the other plaintiff, Thomas, worked in the Power Transmission and Oil Field Divisions. The district court certified a class of employees as to the plaintiffs disparate impact claims but refused to certify a disparate treatment class. After a brief bench trial (limited by the district court to twenty hours per side), the district court found that Lufkin s practice of delegating subjective decision-making authority to white managers for initial assignments and promotions resulted in a disparate impact on black employees and thus violated Title VII. The district court awarded the plaintiffs $3.4 million in back pay along with attorneys fees and injunctive relief. Both sides appealed. On appeal, the Fifth Circuit reviewed Lufkin s argument that the plaintiffs had failed to exhaust their administrative remedies with the EEOC. The Court articulated the general rule that privatesector employees must file an administrative charge with the EEOC as a prerequisite to a suit in federal court. To construe the scope of the EEOC s investigation, the Court employs a factintensive analysis of the EEOC administrative charge and broadly construes the EEOC complaint in terms of the EEOC investigation that can reasonably be expected to grow out of the discrimination charge. Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970). The Court held that McClain s EEOC complaint letter did not sufficiently allege disparate impact against Lufkin because it failed to specifically set out a neutral but discriminatory employment policy. However, Thomas letter did meet this burden, and thus the EEOC administrative exhaustion requirement was met as to the plaintiffs allegations of disparate impact. However, the Court held that the EEOC administrative remedies were not exhausted as to plaintiff class members who were employed in Lufkin s Foundry division. Because neither Thomas nor McClain, the only two plaintiffs who filed charges with the EEOC, were employed in the Foundry division, the Court held that the EEOC would not reasonably have investigated conduct in this division. Therefore, the Court held, the plaintiffs employed in this division had not exhausted their administrative remedies. Page 230 The Appellate Advocate

4 The Court then reviewed the specific test for discrimination based on disparate impact, which requires that the plaintiff show (1) an identifiable, facially neutral personnel policy or practice; (2) a disparate effect on members of a protected class; and (3) a causal connection between the two. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988). In applying this test, the Court first held that the district court did not commit clear error when it held that Lufkin s promotions were based upon subjective decision-making, because the evidence showed that Lufkin s managers used subjective standards in awarding promotions to lower-level employees. The Court also affirmed the district court s finding that Lufkin s employment decision-making processes were not capable of separation for analysis and, therefore, should be analyzed as a single employment practice. While the Court admitted that the Fifth Circuit had not previously set out when this not capable of separation rule applies, it held that the district court did not apply incorrect legal principles in reaching its result. Turning to the issue of whether the plaintiffs had shown that there was a statistically-significant disparity in the promotions awarded to African- American employees, the Court deferred to the district court, which had credited the plaintiffs expert over Lufkin s expert. On the issue of damages, the Court agreed with the district court that it was not possible to determine back-pay on an individualized basis due to the large number of class plaintiffs and the uncertainty of individual claims. Finally, the Court addressed the plaintiffs arguments in turn. The Court affirmed the district court s refusal to certify a class of plaintiffs with respect to the disparate treatment claims. The Court then held that the district court s injunctive relief was too vague and did not meet the specificity requirements set forth in Federal Rule of Civil Procedure 65. However, the Court sympathized with the district court s difficult task in crafting sufficiently narrow relief in the face of the plaintiffs broad allegations of discrimination by Lufkin. The Court also remanded for reconsideration of the proper measure of plaintiffs attorney fee award. The Court ended by noting that the district court still had much to reconsider in this complex and wide-ranging discrimination case. EMPLOYMENT LAW / PUNITIVE DAMAGES Abner v. Kan. City S. R.R. Co., 513 F.3d 154 (5th Cir. 2008) In Abner v. Kansas City Railroad Co., the Court addressed an issue of first impression in the Fifth Circuit: whether Title VII authorizes an award of punitive damages where the defendant is not found liable for compensatory damages. In Abner, eight plaintiffs claimed that the defendant subjected them to a hostile work environment in violation of Title VII and 42 U.S.C. section A jury awarded each plaintiff $125,000 in punitive damages but did not award any compensatory damages. The district court added a one-dollar nominal damage award and entered the jury s punitive damages verdict. On appeal, the defendant argued that Title VII and section 1981 did not permit an award of punitive damages without accompanying compensatory damages. Under Fifth Circuit precedent, the general rule is that punitive damages may be awarded even in the absence of actual damages so long as the plaintiff proves that the defendant committed a constitutional violation. La. ACORN Fair Hous. v. LeBlanc, 211 F.3d 298, 303 (5th Cir. 2000). In this case, however, the jury did not assess whether a constitutional violation had occurred. Although Title VII and section 1981 were enacted pursuant to the Enablement Clause of the Thirteenth Amendment, the Court noted that a violation of these provisions does not necessarily amount to a constitutional violation. Thus, the Court moved on to the question that it had previously avoided: whether Title VII would support a stand-alone punitive damages award. The Fifth Circuit, agreeing with several Sister Circuits, held that the stand-alone punitive damages award was authorized under Title VII and section The Court relied upon the text and legislative history of these statutes, although the Court noted that these sources were somewhat Page 231 The Appellate Advocate

5 inconclusive because the statutory text and legislative history neither anticipated nor proscribed an award of punitive damages without any actual damages. Thus, the Court turned to federal common law to resolve the issue. The Court stressed the importance of jury discretion in awarding punitive damages. On the other hand, the Court noted, the Due Process Clause of the Fourteenth Amendment limits punitive damages awards. Here, the Court held that the award of punitive damages comports with Due Process because of the statutory caps imposed by Title VII and section In addition, Due Process was not offended here because the relevant statutes require a high degree of culpability before punitive damages may be imposed. The Court also looked to Congress s purpose in enacting Title VII and section 1981 and held that a stand-alone punitive damages award comported with congressional intent. According to the Court, the specific harms addressed by Title VII cannot always be reduced into financial terms, and, in any event, the defendant should not enjoy a windfall just because the defendant s egregious conduct did not cause quantifiable physical harm to the plaintiff. Furthermore, the Court found it unnecessary for the district court to award nominal damages of $1, finding that this ceremonial anchor was unnecessary to support an award of punitive damages. FIRST AMENDMENT / PUBLIC EMPLOYEES Davis v. McKinney, 518 F.3d 304 (5th Cir. 2008) Davis v. McKinney is an important case in that it sheds light on how the Fifth Circuit will interpret First Amendment protections in the wake of the Supreme Court s landmark Garcetti v. Ceballos decision. 547 U.S. 410 (2006). Plaintiff Cynthia Davis was employed as an IS Audit Manager at the UT Health Science Center in Houston (UTHSC-H). Part of Davis role included overseeing computer-related audits. To that end, Davis was approached after some UTHSC-H employees were suspected of viewing pornography at work. Davis began an investigation and eventually confiscated a number of computers from employee-physicians who were suspected of accessing pornographic images. Defendant Dr. Michael McKinney, the Senior Vice President and Chief Operating Officer of UTHSC-H, authorized Davis to confiscate employee computers if Davis had a clear indication of wrongdoing. Dr. McKinney later told Davis that he wanted to meet to discuss the investigation. However, Dr. McKinney never met with Davis, and Davis was later told to terminate the investigation. Davis believed that UTHSC-H officials were abdicating their responsibilities in terminating this investigation. Davis wrote a complaint letter to the UTHSC-H president alleging that officials were engaging in misconduct, including disparate treatment of women and African Americans, and other acts of favoritism. Davis also filed complaints with the Equal Employment Opportunity Commission and brought the pornography allegations to the Federal Bureau of Investigation s attention. During this time frame, Davis applied for a promotion for which Davis had allegedly been told she was the most likely candidate. This position was then frozen and not filled, and Davis eventually resigned from UTHSC-H. Davis filed a Section 1983 action against UTHSC-H and several officials, arguing that she had been retaliated against for exercising her First Amendment free speech rights. On cross motions for summary judgment, the district court held that: (1) Davis speech was protected under the First Amendment; and (2) the officials were not entitled to qualified immunity because their actions were not objectively reasonable. The defendants appealed. The Fifth Circuit began by setting out the rule for whether an official enjoys qualified immunity by evaluating: (1) whether the plaintiff has alleged a violation of a constitutional right; and (2) whether the defendant s conduct was objectively reasonable in light of the clearly established law at the time of the incident. Connelly v. Tex Dep t of Crim. Justice, 484 F.3d 343, 346 (5th Cir. 2007). Turning to the first prong, the Court applied the Supreme Court s recent Garcetti Page 232 The Appellate Advocate

6 decision, though the Court noted that not all of Garcetti s implications were yet clear. Indeed, the Court noted that this was only the second Fifth Circuit decision applying Garcetti. The Court noted that Garcetti had added a new layer of First Amendment analysis in the context of public employees the Court must shift its focus away from the content of the speech and instead focus on the role the speaker occupied when making the speech. The Court applied its precedents, as altered by Garcetti, and held that a public employee s speech is subject to First Amendment protection if: (1) the employee s speech is not pursuant to his or her official duties; (2) the speech is on a matter of public concern; and (3) the employee s interest in expressing such a concern outweighs the employer s interest in promoting the efficiency of the public services it performs through its employees. Applying this test, the Court first looked to whether Davis complaint letter was made pursuant to Davis job duties, or instead whether the complaint letter was made as a public citizen. The Court first held that Davis complaint letter was not a single communication. Instead, the letter consisted of numerous components. The Court evaluated the different components of Davis complaint letter and found that portions of Davis letter pertained to her job functions, while other portions had nothing to do with her job functions and, instead, were more akin to statements made as a public citizen. However, the Court noted that the parties did not address the second prong of the test, whether those portions of the letter that were made as a public citizen were on a matter of public or private concern. Thus, the Court remanded so that the parties could brief and the district court could consider whether the matters were of a public or private concern. Turning to the qualified immunity issue, the Fifth Circuit found that there were genuine issues of fact as to whether the defendant officials actions were objectively reasonable such that the officers would be protected by qualified immunity. Since the arguments on appeal only raised questions of fact, the Court was without jurisdiction to pass on these matters. Accordingly, the Court affirmed in part, reversed in part, and remanded in part to the district court. INTELLECTUAL PROPERTY / COPYRIGHTS Armour v. Knowles, 512 F.3d 147 (5th Cir. 2007) In Armour v. Knowles, the Fifth Circuit dealt with perhaps its most entertaining case of Amateur singer/songwriter Jennifer Armour recorded a demo of a song entitled Little Bit of Love. Armour filed for copyright protection of an a cappella version of this song in 2003 and then for the instrumental version in In the hopes of promoting the song, Armour s manager sent a demo copy to a few individuals associated with singer Beyoncé Knowles sometime in the beginning of During the same time frame, Beyoncé began recording a new album that included the now-hit song Baby Boy. Armour filed suit against Beyoncé and claimed that Beyoncé s song Baby Boy was substantially similar enough to Armour s song Little Bit of Love to support a claim for copyright infringement. The district court granted summary judgment against Armour, who appealed the judgment. In analyzing the issue, the Court described the similarities in the two songs in footnote 1: Armour s hook repeats twice and accompanies the following lyrics: Let me know what you wan-na do, ba-by it s your call Got-ta l il bit a love for you, I can stop it or make it grow Let me know what you wan-na do, ba-by it s your call Got-ta l il bit a love for you, I can stop it or make it grow Beyonce s hook repeats four times and accompanies the following lyrics: Page 233 The Appellate Advocate

7 Ba-by boy you stay on my mind, ful-fill my fan-ta-sies I think a-bout you all the time, I see you in my dreams Ba-by boy not a day goes by, with-out my fan-ta-sies I think a-bout you all the time, I see you in my dreams The lyrics differ in word and substance: Armour s evince a somewhat less love for her ba-by a l il bit and somewhat more control over such love, which she can stop or make grow; Beyoncé s suggest a deeper and more stubborn love, which pervades her thoughts, dreams, and fan-ta-sies. Yet, though the nature and depth of their loves may differ, Armour claims they find expression by way of the same musical melody. Armour, 512 F.3d at 151 n.1. Based on the differences noted, the Court held that Beyoncé did not infringe Armour s copyrights, and therefore affirmed the judgment of the district court. The Court set out the applicable standard for copyright infringement, which requires the plaintiff to establish ownership of a valid copyright, factual copying, and substantial similarity. The factual copying element can be established by either direct or circumstantial proof. Here, Armour put forth circumstantial evidence of factual copying based upon Beyoncé s access to the song and the probative similarities between the relevant songs. The district court based its grant of summary judgment on the absence of the third factor (substantial similarity). Though the Fifth Circuit affirmed, it did so for a different reason and found that Armour had not met the second factor (factual copying) based upon Armour s circumstantial evidence of access. The Court found that Beyoncé had composed Baby Boy over a long period of time and that Beyoncé was putting her final touches on the song at the time that Armour claims that Beyoncé had access to Little Bit of Love. The Court also rejected Armour s arguments that Beyoncé had access to Little Bit of Love through other sources. Finding that a required element of copyright infringement was absent, the Court affirmed the district court s dismissal. QUALIFIED IMMUNITY / INTERLOCUTORY APPEALS Charles v. Grief, 512 F.3d 753 (5th Cir. 2008) In Charles v. Grief, the Fifth Circuit issued a stern warning concerning the use of interlocutory appeals. Though this decision was directed at the Texas Attorney General s Office, all appellate practitioners would do well to heed the Court s admonishments on the use of interlocutory appeals. Plaintiff-Appellee Shelton Charles worked as a systems analyst for the Texas Lottery Commission. Charles alleged that the Commission was engaged in misconduct, including violations of the Texas Open Records Act and misuse of state funds. Charles sent e- mails outlining this alleged misconduct to the legislative committee that oversees the Commission. Charles subsequently forwarded one of these s to Commission officials. Defendant-Appellant Gary Grief, who was a highranking Commission official, ordered Charles to meet with his supervisor to answer questions regarding these s. During this questioning, Charles requested that the Commission s questions be put in writing so that Charles could submit written answers. Later that day, Grief fired Charles, purportedly based on Charles insubordination. Charles filed a Section 1983 action and argued that Grief and the Commission had retaliated against him in violation of Charles First Amendment right to free speech. Grief defended on qualified immunity grounds. The magistrate judge recommended denial of the qualified immunity defense because the record demonstrated genuine issues of fact. The district court adopted the magistrate s findings and refused to dismiss the case on qualified immunity Page 234 The Appellate Advocate

8 grounds. Grief filed an interlocutory appeal challenging the district court s decision. A Fifth Circuit panel dismissed the appeal and found that it was without jurisdiction over Grief s interlocutory appeal. The Court emphasized that a federal court of appeals does not have jurisdiction over an interlocutory appeal except in a few narrow situations. Though the Fifth Circuit can hear an interlocutory appeal where the district court denies a claim of qualified immunity, settled precedent established that interlocutory appeals are only proper where the denial was based on disputed legal issues, not where, as in Charles v. Grief, there are genuine disputes over material facts. The Fifth Circuit acknowledged that [e]very argument in counsel s brief to the court might be correct and might ultimately prevail. Nonetheless, Grief s appeal was premature. The Court then issued a warning for future appellants, calling this appeal unwarranted and unconscionable in light of this court s burgeoning precedent uniformly rejecting such appeals. Because the typical plaintiff in cases such as this one is at a severe financial disadvantage relative to the government, the Court stated that such an appeal smacks of economic duress. The Court also noted that it had recently dismissed a similar interlocutory appeal by the Texas Attorney General and warned counsel to carefully heed the Court s precedents before filing an interlocutory appeal lest they incur penalties, sanctions, damages for, e.g., frivolous appeals, or worse. TAX LAW / VALUATION OF ANNUITIES Anthony v. United States, 520 F.3d 374 (5th Cir. 2008) James Louis Bankston, Sr. was seriously injured in a 1990 car accident. In settlement of his claims, Bankston entered into a structured settlement arrangement and became the beneficiary under three annuities. Each annuity was non-transferable under its terms. Bankston died in 1996, and his Estate filed a tax return that included the value of these three annuities. Under the Internal Revenue Code, the Estate must pay tax on the annuities based upon the fair market value of the annuities at the time of the decedent s death. Treas. Reg (b). The fair market value is set forth in specific annuity tables that are codified in the Internal Revenue Code. 26 U.S.C The Estate valued the annuities under the applicable annuity tables and paid its entire tax liability of $610,683. In 2001, the Estate claimed that the three annuities had been overvalued on the Estate s tax return and, as a result, the Estate had overpaid its tax liability by $427,620. The district court held that the Estate s annuities were properly valued under the annuity tables and, therefore, the Estate was not entitled to a tax refund. The Estate appealed. Regulations promulgated by the Treasury Department provide an exception to the otherwise mandatory application of the annuity tables. This exception allows departure from the annuity tables for restricted beneficial interests, which are defined by the Regulations as an annuity, income remainder, or reversionary interest that is subject to any contingency, power, or other restriction Treas. Reg (b)(ii). Here, the Estate argued that the nontransferability of the annuities qualified as an other restriction under the Regulations, and therefore the Estate was not required to value the annuities using the Internal Revenue Code s annuity tables. In evaluating the merits, the Fifth Circuit reviewed its previous decision in Cook v. Commissioner. 349 F.3d 850 (5th Cir. 2003). In Cook, the Fifth Circuit refused to depart from the annuity tables based upon the non-transferability of an annuity, holding that the non-transferability of an annuity is a basic assumption built into the annuity tables. Id. at 854. The Estate conceded that Cook involved a nearly identical issue as was presented in this case. However, the Estate argued that this case was controlled by the restricted beneficial interest exception, which did not become a part of the Regulations until after Cook was decided. In its first decision applying this Regulation, the Court held that the Page 235 The Appellate Advocate

9 non-transferability of an annuity does not qualify as an other restriction under the restricted beneficial interest exception. Accordingly, the Estate must use the annuity tables set out in the Internal Revenue Code. The Court performed a thorough textual analysis of the Regulation and found that it would not support the Estate s position. The Court held that the Regulation was only intended to codify the existing case law concerning exceptions to the use of the annuity tables. Under the Fifth Circuit s precedent of Cook, the non-marketability of an annuity was a basic assumption underlying the annuity tables, not a basis for departing from the use of these annuity tables. The Court expressly recognized that the annuity tables used by the Internal Revenue Code sacrifice accuracy of valuation for convenience and ease of administration. Moreover, the Court recognized that financial markets assign different values to annuities based upon whether the annuity is transferable or not. The Court held that this distinction is simply irrelevant under the Internal Revenue Code. According to the Court, the fact that the annuity tables do not reflect the true value of many annuities is acceptable because the error costs are perceived as small in the aggregate. Despite the Estate s arguments to the contrary, the Court could not justify a departure from the annuity tables provided by the Tax Code and, therefore, affirmed the district court s decision. Page 236 The Appellate Advocate

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