I am reading Yung v Grant Thornton. This is a mammoth decision – it runs over
200 pages.
William Yung (Yung) owns a hotel and
casino company (Columbia Sussex) based in northern Kentucky. I remember meeting
with some of his tax people several years ago. I have watched fireworks from his Kentucky office
location.
Then there is Grant Thornton (Grant),
a national accounting firm, and its former partner, Jon Michel (Michel). Jon
and I worked for the same accounting firm, although not at the same time. I
remember having lunch with Jon a few years later and discussing joining Grant
Thornton’s tax team. I also remember the unacceptable sales pressure that went
with joining Grant. I passed on that, and I am glad I did.
Jon is in the tax literature, and not
in a good way. It has a lot to do with that sales pressure.
Today we are talking about tax
shelters.
CPA firms - especially the nationals
- in the 1990s and aughts became almost pathologically obsessed with
profitability. Accounting practice was changing, and the tradition of
accountants being business advisors and confidantes was being replaced with a
new, profit-driven model. We saw metrics like “write-ups” and “write-downs” by
individual accountants. There were “individual” marketing plans for accountants
two or three years into the profession and having another five or seven job
changes ahead of them. I remember a CPA whose promotion to manager was delayed
because she missed her “chargeable” budget by approximately 40 hours – over the
course of an entire year.
And tax departments were leaned upon
to come up with new “products” to market to clients.
COMMENT: Referring to tax advice as a “product” tells one a
lot about the underlying motivation of whoever is promoting it. I for example
do not sell a “product.” I provide business and tax advice. If you want a
product, go to Amazon.
So what flavor of tax shelter are we
talking about?
Yung and family and family entities (such
as Columbia Sussex) own casinos and hotels. Some of them are in the Cayman
Islands, which would make them controlled foreign corporations (CFCs). You may
recall that the U.S. wants to tax all U.S. businesses on their worldwide
income. Since doing so would almost guarantee that there would be no U.S. -
based international businesses, the tax Code allows for tax deferrals, then
exceptions to those deferrals, and then exceptions to the exceptions, and so on.
It borders on lunacy, frankly, but this is what Yung and entities were caught
in. Yung and entities had monies overseas, but it would have cost a fortune in
taxes to bring the monies back to the U.S. Yung’s son Joe traveled regularly to
the Caribbean, Central and South America seeking acquisition opportunities as a
means to reinvest the Cayman monies. Grant was their accounting firm. Jon
Michel even assisted in the acquisition of a Canadian hotel.
There was opportunity there for a
sharp tax advisor.
Here is opportunity knocking:
·
A
partnership contributes cash to a foreign corporation (FC). It receives the
common stock.
·
Another
party also contributes cash. In return it receives preferred stock.
·
The
FC borrows money from a bank.
·
With
the money, the FC buys marketable securities.
·
FC
then distributes the securities, with its attendant debt (sort of), to the
partnership, liquidating the partnership’s investment in FC.
·
There
is a technical tax rule concerning a distribution with debt attached. The debt
reduces the fair market value of the securities. If the debt were equal to the
value of the securities, for example, the net distribution would be zero (-0- ).
·
The
partnership received a liquidating distribution worth zero (or near zero) but
had an investment equal to the cash it put in FC. This leads to a big tax loss.
So far, so good. The partnership
received marketable securities, but it also has to pay back the bank. Where is
the tax shelter, then?
·
The
FC later pays off the debt.
Whoa!
The partnership is out no money but
has a big tax loss.
The key to this was being able to
reduce the liquidating distribution by the bank debt, even though the
partnership never intended to pay the debt. Some tax CPAs and tax attorneys
argued that this was fine, as tax Code Section 301(b)(2)(B) reduced the
distribution…
“… by the amount of any liability to which the property
received by the shareholder is subject immediately
before, and immediately after,
the distribution.”
We are talking the Bond and Optional Sales
Strategy tax shelter sold by Price Waterhouse in the 1990s. The nickname was
BOSS, and the IRS was determined to come down hard on the BOSS transactions and
enablers. Frankly, I don’t blame them.
In 1999 the IRS published Notice
99-59, which warned that tax losses claimed in a BOSS transaction were not
allowable for federal income tax purposes. The Service also warned of substantial
and numerous penalties.
Congress followed this up with new
tax Regulations to Section 301 in 2000.
So what did Grant Thornton do? It
developed a new “product” which it called “Leveraged 301 Distributions” or
Lev301. How did it work? Here is an
internal Grant document:
The objective of the Leveraged 301 Distributions tax product
is to structure distributions in order to permanently avoid taxability to
shareholders. Either closely-held C corporations or S corporations can
distribute assets subject to liabilities … and provide this benefit to shareholders.”
How similar is this thing to BOSS,
which provoked Notice 99-59 and new tax Regulations? Back to that Grant internal
document:
Further the IRS may assert arguments it used against the BOSS
transaction in Notice 99-59 and against the subject-to language of former IRS
Section 357”
This has to be a finalist for the
“Worst Timing Ever” award.
Grant goes live with the product in June
2000. Jon Michel begins to promote the thing, including to Yung and Columbia Sussex.
You already know this thing went to
trial, so let’s fast-forward to some language from the Court:
No one associated with Grant Thornton, even those intimately
involved in the process who testified to the court, has stepped forward and
taken credit for the idea and creation of Lev301.”
Hey, but Lev301 is substantially
different from BOSS, right?
Here is the Court:
Grant Thornton believed that there was a 90% chance that the
IRS would disallow the tax benefits on the Lev301 on audit.”
Good grief! Why would a self-respecting
tax advisor be associated with this?
Yung and Columbia Sussex were not
told about the 90% chance.
The court finds that Yung and associates brought income into
the United States from his CFC’s on a routine basis. Yung and his associates
looked for ways to accelerate this process but vetted possible means of doing
so with a close concern for the risks involved, as evidenced by the decision
not to participate in other tax strategies presented to them. Yung and his associates
maintained a very conservative risk level about income tax reporting as evidenced
by the IRS complimenting the consistent approach to paying taxes. The court
finds the Yung’s testimony to be consistent with this approach to tax reporting
and, therefore, to be credible.”
What did the Court say about Grant?
The evidence indicates everyone who participated was on high
alert regarding this product. As a result, while this court certainly
understands the fading of memory, the failure of some of Grant Thornton’s
witnesses to recall anything about their participation in the research and
development of this product is disingenuous and not credible.”
Let’s continue. Would Jon Michel have
been permitted to meet and pitch Lev301 to Yung had Yung’s tax department been
informed of the risk?
The likelihood that the IRS would view the Lev301 as an unlawful abusive tax shelter
was a present risk that would have impacted … (Columbia Sussex’ CFO) decision
to allow …. J(on) Michel to present Lev301 to Yung. Had the risk been
disclosed … (Columbia Sussex’ CFO), (as he had done with the prior proposals)
would have terminated discussions about Lev301 at that point.”
So Jon Michel and Yung meet. Yung wanted
to know if other Grant clients had used this scheme.
J(on) Michel told Yung that, while he could not divulge the
names of other Grant Thornton clients, he could disclose that a local
jet-engine manufacturer and a local consumer products manufacturer had
successfully used the Lev301 strategy to transfer foreign wealth to the U.S.”
For those of us who live in
Cincinnati, the reference to GE and Proctor & Gamble is unmistakable.
Still, if GE and P&G did use the strategy…
When Michel made this representation to Joe Yung, he had no
knowledge as to whether GE and P&G had utilized a Lev301-like strategy.”
All right then.
In 2002 the IRS initiated an
examination of Grant Thornton. The IRS issued a summons asking for documents
relating to Grant’s promotion of Lev301 and the names of clients who
participated in the product.
Grant Thornton did not notify the Yungs … about the summons,
which further increased the likelihood that the Yungs … would be audited by the
IRS on account of their participation in the Lev301.”
In November of 2002 the IRS audited Columbia
Sussex for reasons unrelated to Lev301.
NOTE: This is fairly common for larger, higher-profile
corporations. It does not necessarily mean anything.
Grant was hired to represent during
the tax audit.
In 2003 Yung and Columbia Sussex
received an Information Document Request from the IRS. The IRS wanted to know
whether they had directly or indirectly participated in any transactions that
were the same or substantially similar to a “listed” transaction.
NOTE:
Like a BOSS or a BOSS-like transaction.
Jon Michel answered the question
“No.”
The tax director at Columbia Sussex later
read in a trade journal that the government was summoning Grant Thornton. He
called Jon Michel. Jon informed Yung and associates that Grant was likely to
comply with the summons and that client names would be turned over to the IRS.
And they were.
The IRS expanded its audit of
Columbia Sussex to include more years, the Yung family, family entities and any
unfortunate soul driving past corporate headquarters on I-275 in northern
Kentucky. On the other hand, in 2004 Jon Michel wrote a nice letter to Yung and
entities offering limited tax representation before the IRS.
Do we need to continue this story?
The Yung family and entities owed
over $18 million in tax, interest and penalties to the IRS.
If this were you, what would you do
next?
You would sue Grant Thornton.
COMMENT: Be honest:
this is a Mr. Obvious moment.
A Kentucky circuit court has just ordered
Grant Thornton to pay Yung and family and entities approximately $100 million, including
$80 million in punitive damages. The judge described Grant’s actions as
“reprehensible.”
Grant intends to appeal, saying:
We are disappointed in the Court’s ruling and believe we have
strong grounds for an appeal, which we will pursue.”
Grant has to appeal the decision, of
course.
My thoughts?
Remember that Yung is in the hotel
and casino business, an industry subject to higher financial and personal scrutiny.
What is the collateral and reputational damage to him and his entities from an
abusive tax shelter? Yung has said the ordeal has already cost him a casino license
in Missouri.
I have little patience for this type
of practice. What was motivating Grant with the Lev301 “product”- solving a
client’s tax problem or generating a million dollar fee? Could it be both?
Sure, but the smart money would bet the other way. This type of behavior is not
“practice.” It is greed, it is an abuse of a professional relationship and it
is disreputable to those of us who try to practice between the lines.
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