990 F.2d 893 (6th Cir. 1993), 92-1681, Pasternak v. C.I.R.

Docket Nº:Frank C. PASTERNAK; Judith Pasternak (92-1681/1682);
Citation:990 F.2d 893
Case Date:April 08, 1993
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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990 F.2d 893 (6th Cir. 1993)

Frank C. PASTERNAK; Judith Pasternak (92-1681/1682);

Anthony J. Cutaia; Diane Cutaia; David G.

Koehlinger (92-1681), Petitioners-Appellants,



Nos. 92-1681, 92-1682.

United States Court of Appeals, Sixth Circuit

April 8, 1993

Argued March 15, 1993.

Rehearing Denied June 7, 1993.

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Frederick A. Patmon, Detroit, MI, Clarence B. Tucker, Sr. (argued and briefed), Detroit, MI, for petitioners-appellants.

Thomas J. Clark, Trial Attorney (argued), U.S. Dept. of Justice, Tax Div., Gary R. Allen, Acting Chief (briefed), Gilbert S. Rothenberg, U.S. Dept. of Justice, Appellate Section, Tax Div., Washington, DC, for respondent-appellee in No. 92-1681.

Thomas J. Clark, Trial Attorney (argued), U.S. Dept. of Justice, Tax Div., Abraham N.M. Shashy, Jr., Chief Counsel, I.R.S. Office of Chief Counsel, Gary R. Allen, Acting Chief (briefed), Gilbert S. Rothenberg, U.S. Dept. of Justice, Appellate Section, Tax Div., Washington, DC, for respondent-appellee in No. 92-1682.

Before: NELSON, Circuit Judge; and PECK and CONTIE, Senior Circuit Judges.

CONTIE, Senior Circuit Judge.

Petitioners-appellants, Frank C. Pasternak and Judith Pasternak; Anthony J. and Diane Cutaia; and David G. Koehlinger,

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appeal a Tax Court decision upholding tax deficiencies and penalties against them for the taxable years 1981 and 1982 issued by the Commissioner of Internal Revenue, respondent-appellee.


Petitioners are persons who invested in various master recording leasing programs. Four corporations were set up by Misters Barbret, Labbadie, Rosanova, and the Detroit law firm of Patmon and Young ("the promoters"), which became the general managing partner of four limited partnerships. The promoters created three limited partnerships in late 1981 (Pop Phonomasters, Ltd., Soul Phonomasters, Ltd., New America Phonomasters, Ltd.) and one in 1982 (Rock Kandy Phonomasters, Ltd.). The alleged purpose of each limited partnership was to acquire and then lease to a group of investors the master recordings of an artist containing enough songs to constitute an album through entities designated as co-tenancies. It was then left up to the co-tenancies to process, press, distribute, and market the albums and other derivatives of the master recordings which had been leased. On December 28, 1981, the Pop, Soul, and New America Phonomasters limited partnerships each acquired master recordings of a designated artist with an initial purchase price of from $50,000-$10,000. Although the stated purchase price for the recordings, according to the purchase agreements, required the payment of additional fees of from $27,000 to $50,000 and of royalties, there is no evidence that the second fees and royalties were ever paid. For the Rock Kandy Phonomasters limited partnership, there is insufficient evidence that enough master recordings to constitute an album existed for it in 1982.

The promoters then formed four entities or "co-tenancies" named Pop Phonomasters Leasing, New America Phonomasters Leasing, Soul Phonomasters Leasing, and Rock Kandy Phonomasters Leasing for the purpose of leasing the master recordings to investors, such as the taxpayers herein. An investor joined one of the co-tenancies as a co-tenant by signing an acceptance to an offer to participate in the co-tenancy, an operating agreement, and a Phonomasters lease. Each co-tenancy leased the master recordings, which were to comprise an album of a designated artist, from either the Pop, Soul, New America, or Rock Kandy limited partnerships. About 45 investors invested in each co-tenancy. The leases granted the lessee-investors the exclusive right to exploit the recordings in the United States for a three-year-term and required a fixed rental payment and the payment of a fee to a marketing agent for a total of $275,000 (at least $435,000 for Rock Kandy). The lease for each co-tenancy stated that the "stipulated loss value" of the recordings were $3,370,000 ($6,144,400 for Rock Kandy), and that the co-tenancies, which bore the full risk of loss, were required to insure the recordings for at least that amount.

The co-tenants herein signed the acceptance of the offer and invested the following amounts to lease the master recordings from the respective Phonomasters limited partnerships.

Amount Year Taxpayer Co-Tenancy Invested 1981 Cutaias New America $20,125 1981 Koehlinger Soul 5,000 1981 Pasternaks Pop 5,500 1982 Pasternaks Rock Kandy 6,660

The co-tenants appointed petitioner Frank Pasternak as "co-tenancy operator" ("CTO") to manage the affairs of all four co-tenancies. He had the exclusive right and duty to conduct the affairs of each co-tenancy.

Pasternak, a CPA, knew little about the recorded music industry and had agreed to become co-tenancy operator at the request of Barbret and Labbadie, two of the promoters. He executed the leases, marketing agreements, and production and distribution contracts on behalf of the co-tenancies as he was instructed by the Phonomasters promoters without negotiating the terms of the agreements. He received none of the co-tenants' initial investments and kept no records of their interests.

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The co-tenants' checks, payable to the various "leasing agents," 1 were deposited in the agents' accounts. Pasternak executed releases permitting the leasing agents to take their commissions from the funds received by the co-tenancies. The agents then deducted their commissions and paid the balance to a trust account at the law firm of Patmon and Young. Otherwise Pasternak did not know what happened to the investors' funds after they went to the leasing agents. He did not know how much of the co-tenants' money, if any, was ultimately used to pay for rent or for marketing of the master recordings.

Although the operating agreement signed by each investor-co-tenant specified that the CTO was obligated to keep records of co-tenancy activities, there is no evidence that Pasternak ever maintained any books or records, not even of the amounts invested by each co-tenant. Although he signed the marketing agreements with Opportunity Marketing, Inc., he made no payments to any marketing agents as required by the lease or knew whether any payments had ever been made. Opportunity Marketing was not paid $132,000 to market the master recordings of each artist as required by each lease agreement. Pasternak did not insure the master recordings for $3,370,000 as required by the lease ($6,144,400 for Rock Kandy).

When Pasternak sent investors, who had co-tenancy interests in 1981 and 1982 programs, notices of their "aliquot share" of the investment tax credit and business deductions resulting from the lease transactions, Pasternak had no knowledge as to whether the investors' funds had been paid over for eligible deductible business expenses rather than for capital expenditures or other nondeductible expenditures. The Phonomasters limited partnerships had elected to pass through the investment tax credits which they received from the purchase of the master recordings to the co-tenancies. 2 The amount of investment tax credit allocated among the co-tenants, with regard to the 1981 Pop, Soul, and New America leases, was based on the assumption that each artists' master recordings had a fair market value of $3,370,000. With regard to the 1982 Rock Kandy lease, the Pasternaks (the only persons in this appeal who invested in Rock Kandy) claimed an investment tax credit based on the assumption that the Rock Kandy recordings had a fair market value of $6,144,000. Thus, the tax returns filed by the respective petitioners for 1981 and 1982 were based upon the assumption that the Phonomasters limited partnerships' cost bases for the master recordings were as follows:

Alleged Purchase Value Price 1981 — Pop Phonomasters, Ltd. $3,370,000 (Sterling Harrison — Artist) $50,000 1981 — Soul (L.V. Johnson — Artist) 3,370,000 10,000 1981 — New America Phonomasters, Ltd. (Monk Higgins — Artist) 3,370,000 10,000 1982 — Rock Kandy Phonomasters, Ltd. (Bonnie Pointer — Artist) 6,144,000

The Phonomasters limited partnerships had paid between $10,000 and $50,000 for the master recordings of each artist except for Bonnie Pointer, for whom all the master recordings that were to comprise an album never materialized.

On petitioners' tax returns, the amount of the business expense deductions equalled, for each taxpayer, exactly the amount invested by the taxpayer during the year in question. Pasternak testified that the information he provided to the co-tenants with regard to their proportionate shares of investment tax credits and business deductions was given to him by the Phonomasters promoters. Petitioners claimed investment tax credits and business expense deductions, pursuant to Internal Revenue Code Section 162, in the following amounts:

Section 162 Investment Amount Year Taxpayer Deduction Tax Credit Invested 1981 Cutaias $20,125 $24,662 $20,125 1981 Koehlinger 5,000 6,127 5,000 1981 Pasternaks 5,500 8,086 5,500 1982 Pasternaks 6,660 6,114 6,660

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The Commissioner disallowed the claimed deductions and credits arising from petitioners' investments in the Phonomasters leasing...

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