February 7, 2008
7th Circuit Upholds Retroactive Application of "Son-of-Boss" Regs, Contrary to Klamath
I previously blogged the district court's decision in Klamath Strategic Investment Fund LLC v. United States, 440 F. Supp. 2d 605 (E.D. Tex. 2006), which held that the anti-"Son of Boss" Reg. § 1.752-6 could not be applied retroactively by the IRS to tax shelters entered into prior to June 24, 2003 (when § 1.752-6 was issued as a temporary regulation) . The Seventh Circuit today upheld the application of Reg. § 1.752-6 retroactively to October 18, 1999. Cemco Investsors, LLC v. Forest Chartered Holdings, Ltd, No. 07-2220 (7th Cir. 2/7/08). The opening of Judge Easterbrook's unanimous opinion foreshadowed the result:
Paul M. Daugerdas, a tax lawyer whose opinion letters while at Jenkins & Gilchrist led to the firm’s demise (it had to pay more than $75 million in penalties on account of his work), designed a tax shelter for himself, with one client owning a 37% share.
The Seventh Circuit described the tax shelter this way:
A transaction with an out-of-pocket cost of $6,000 and no risk beyond that expense, while generating a tax loss of $3.6 million, is the sort of thing that the IRS frowns on. The deal as a whole seems to lack economic substance; if it has any substance (a few thousand dollars paid to purchase a slight chance of a big payoff) then the $3.6 million “gain” on one premium should be paired with the $3.6 million “loss” on the other; and at all events the deal’s nature ($36,000 paid for a slim chance to receive $7.2 million) is not accurately reflected by treating Euro 56,000 as having a basis of $3.6 million.
Update: Joe Kristan has more here.
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Tracked on Feb 7, 2008 5:14:59 PM
good opinion, but one part leaves me confused:
"The Commissioner has a statutory power to disregard transactions that lack economic substance.
Compare Gregory v. Helvering, 293 U.S. 465 (1935), with Frank Lyon Co. v. United States, 435 U.S. 561 (1978)."
it's a bit strange to establish the commissioner's supposed "statutory power" by referring to cases. usually when you say that a statute supports something, you follow it up by a citation to a statute.
the people drafting economic substance codification proposals might be surprised to know that the statute is already there (See 26 U.S.C.A. Gregory and 26 U.S.C.A. Frank Lyon).
Posted by: andy | Feb 7, 2008 4:24:06 PM
It is possible to read section 7805(a) as a broad anti-abuse measure, which would encompass the common-law doctrines. Of course, this type of reading is foreclosed by what happened historically.
Posted by: Apep | Feb 8, 2008 9:28:14 AM