889 F.2d 973 (11th Cir. 1989), 87-8916, Autrey v. United States
|Citation:||889 F.2d 973|
|Party Name:||D. Robert AUTREY, Jr., an individual, et al., Plaintiffs-Appellees, Cross-Appellants, v. UNITED STATES of America, Defendant-Appellant Cross-Appellee.|
|Case Date:||December 06, 1989|
|Court:||United States Courts of Appeals, Court of Appeals for the Eleventh Circuit|
[Copyrighted Material Omitted]
Gary R. Allen, Acting Chief, Appellate Section, Tax Div., Dept. of Justice, William S. Rose, Jr., Asst. Attorney General, Jonathan S. Cohen, Joan I. Oppenheimer, Asst. Attys. Gen., Washington, D.C., for defendant-appellant, cross-appellee.
Jerry B. Blackstock, Powell, Goldstein, Frazer & Murphy, James W. Hawkins, William M. Ragland, Jr., Atlanta, Ga., for plaintiffs-appellees, cross-appellants.
Appeals from the United States District Court for the Northern District of Georgia.
Before KRAVITCH and CLARK, Circuit Judges, and HENDERSON, Senior Circuit Judge.
KRAVITCH, Circuit Judge:
Appellees-cross-appellants brought suit challenging penalties the Internal Revenue Service had assessed under Internal Revenue Code sections 6700, 6701, and 6694 for promoting abusive tax shelters and aiding and abetting understatement of tax liability. 1 A jury found in favor of appellees and the government appeals, citing as error certain of the district court's jury instructions. Appellees cross-appeal from a decision of the district court that the court lacked jurisdiction to entertain the claim of appellee D. Robert Autrey, Jr. for a refund, as well as the court's decision to deny appellees' motion for litigation costs.
STATEMENT OF FACTS
Autrey is a Georgia lawyer and tax specialist. In the early 1980s Autrey organized four cattle breeding enterprises--Star Brangus Ranch, Inc., Sweet Autumn Land and Cattle Co., Inc., Cattle Enterprises, Ltd., and Circle BA Ranch, Inc. Autrey was the principal promoter of these enterprises, was an officer of each, and played a role in the day-to-day management of each as well.
Autrey promoted the cattle breeding program by means of private placement memoranda offered by each of the four corporations. Although each private placement memorandum on its face purports to offer "securities," a close reading of the memorandum and the evidence adduced at trial reveals that investors were purchasing the actual breeding cows and entering into certain ancillary agreements. 2 Each of the
cattle breeding corporations operated in a similar fashion.
The Star Brangus Ranch was characteristic of the cattle breeding investment programs. 3 An investor would enter an agreement as a "Breeder" with Star Brangus, which would act as a "Rancher." A typical investor would make an investment of $100,000, $2,000 of which would be cash and the remaining $98,000 would be in the form of a seven-year recourse promissory note. Under the terms of the promissory note the investor would pay nine percent interest for the first four years, i.e., $8,820, in four equal quarterly installments per year, and would pay off the principal in the fifth, sixth, and seventh years ($57,952, $19,000, and $21,048, respectively).
For his money, the investor purchased a breeding herd or "unit" of six mother cows. As part of his investment, an investor would also enter into a Cattle Breeding Agreement and a Calf Option Agreement. Under the Cattle Breeding Agreement the Rancher would take possession of a Breeder's cows and "furnish the bulls and/or the semen and [would] breed the Breeder's cows in accordance with a planned professional breeding program." The Cattle Breeding Agreement also gave the Breeder the right to have any cow in his herd that became barren replaced with one of equal or greater value. As appellees observe, this right of substitution was essentially a warranty as to the fertility of the cows.
The Breeder/investor was obligated under the Cattle Breeding Agreement to pay the Rancher $1,000 per breeding cow per year for maintenance. This maintenance fee, however, was not scheduled in annual payments; instead, the Breeder would pay $24,000 in the fifth year and $6,000 in the sixth year.
In the first year the Breeder would pay the Rancher an initial management fee of $3,700. Each year the Breeder would also pay the Rancher $720 for cattle insurance, $475 as an annual management fee, and $53 for membership in the Cattle Association. 4
Under the Calf Option Agreement the investor had a "put" option to sell the calves to the rancher for a fixed price when the calves were two years old. Oddly, the "fixed price" for any calves was not related to the number of calves; it was simply set at $25,000 for a given year's "crop" of calves, regardless of how many calves were sold. The Calf Option Agreement was structured so that the Breeder had to take affirmative steps if he did not want to sell a year's calves to the Rancher. If the Breeder took no such steps, the calves would be sold to the Rancher, who would pay for the calves by means of a promissory note. The payments under the promissory note over the course of the agreement were scheduled so that they would largely balance the amounts owed by the Breeder to the Rancher under the breeding cow purchase promissory note.
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Offsetting Promissory Note Payments Description 1983 1984 1985 1986 1987 1988 1989 1990 Principal on $57,952 $19,000 $21,048 $98,000 note 'Maintenance' $24,000 $ 6,000 fees Notes (plus accrued interest) under Calf Option Agreement ------- ------- ------- Net Cash Amount "0" "0" owed by Breeder to Rancher The net result of this is that the Breeder would not have to pay off the $98,000 promissory note with cash; instead, that obligation would be satisfied by the Rancher's
offsetting obligation under the Calf Option Agreement. We also note that although the Rancher's obligations to the Breeder under the Calf Option Agreement would exceed the Breeder's obligation to the Rancher under the promissory note, this excess would itself be largely offset by the maintenance fee, which, as we noted above, was not due annually, but instead was to be paid in the fifth and sixth years.
It is curious that current maintenance expenses would be paid by promissory notes payable some years from when the Rancher in theory accrued the expenses. Although not necessary to our deciding the appeal at hand, viewed in toto, it appears that the "interest" on the $98,000 promissory note was in large part the actual maintenance fee. The so-called "maintenance fee" promissory notes were simply used to help off-set the principal obligation of the $98,000 promissory note.
If the Breeder decided to retain the calves, or to sell them to someone other than the Rancher, then the Rancher had an option to buy "at least" a one-third breeding interest (and, if applicable, semen interest) in any calf for a fixed price of $2,000 per one-third interest. 5 Further, if the Breeder did not "put" the calves to the Rancher, the Breeder had to reimburse the Rancher for certain maintenance, insurance, and advertising costs associated with the calf. The Breeder would also have to reimburse the Rancher for "Artificial Insemination expenditures," "Sire's semen," etc. 6
Under the terms of the Cattle Breeding Agreement, in the event of the Rancher's bankruptcy,
the Promissory Note for the original purchase of the cattle, given by the Breeder to the Rancher, shall be null and void as of the time the Rancher is adjudicated a bankrupt. Any Promissory Notes given by the Rancher to the Breeder for the purchase of any calves, and any accrued calf option amounts, under the terms of the Calf Option Agreement shall be null and void.
By the same token, if the Breeder was declared bankrupt
prior to the Breeder paying all sums due under the terms of the Promissory Note for the original purchase of the cattle, given by the Breeder to the Rancher, the Promissory Note shall be null and void as of the time the Breeder is adjudicated a bankrupt. Any Promissory Notes given by the Rancher to the Breeder for the purchase of any calves, and any accrued calf option amounts, under the terms of the Calf Option Agreement shall be null and void.
Thus, in the event of either party's bankruptcy, the house of cards made from the various promissory notes would conveniently vanish, relieving both parties of liability.
Although the cattle breeding programs were promoted as being profitable, the private placement memorandum, which Autrey authored, and the tax opinion letter he wrote and made a part of the private placement memorandum, detail the lucrative tax benefits an investor might enjoy. We need not go into every facet of the cattle breeding program, the largest tax benefits would flow from the depreciation and investment tax credit Autrey asserted would be available on the full $100,000 investment.
As described by Autrey, under then-applicable law, an investor would take the following Accelerated Cost Reduction System ("ACRS") deductions as well as an Investment Tax Credit ("ITC") over the five-year depreciable life of the cattle (assuming that the $100,000 is properly subject to depreciation):
Year ACRS ITC 1 $14,250 $10,000 2 $20,900 3 $19,950 4 $19,950 5 $19,950 In addition, Autrey asserted that all the various...
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