Deseret Mgmt. Corp. v. United States
| Decision Date | 22 August 2013 |
| Parties | DESERET MANAGEMENT CORPORATION, Plaintiff, v. THE UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
Tax refund claim; Trial; Exchange of radio
stations; Like-kind exchange - section 1031
of the Code; Goodwill - qualitative and
quantitative aspects; Significant goodwill not
transferred in exchange of radio stations;
OPINIONEric C. Olson, Kirton & McConkie, Salt Lake City, UT, for plaintiff.
Benjamin C. King, Jr., Tax Division, United States Department of Justice, Washington, D.C., with whom was Assistant Attorney General Kathryn M. Keneally, for defendant.
This tax refund case is before the court following trial in Washington, D.C. There are two distinct issues presented in this case. The first involves the tax treatment of a swap of radio stations that occurred in 2000. More specifically, at issue is whether the agreed upon value of radio station KZLA-FM (KZLA), the Los Angeles station that plaintiff swapped in that transaction, included any component for goodwill. Plaintiff claims that the station, which was the only country station in Los Angeles at the time, possessed no appreciable goodwill; defendant contends otherwise. If plaintiff is correct, no additional taxes were owed on the swap,which otherwise qualified as a like-kind exchange under section 1031 of the Internal Revenue Code.2 If defendant is right, the portion of the value of KZLA allocated to goodwill is taxable as capital gain. The second issue herein involves whether assets that were placed in service between 1988 and 2000 are properly classified as non-residential buildings (or structural components thereof) or, instead, property used in radio broadcasting. Resolution of this issue affects the class lives of this property, thereby impacting the calculation of depreciation allowances under section 168 of the Code.
Based on its review of the record, and for the reasons that follow, the court finds that: (i) for purposes of the like-kind exchange provisions of section 1031 of the Code, plaintiff did not transfer appreciable goodwill as part of the KZLA exchange; and (ii) with the exception of certain air conditioning equipment, plaintiff has failed to demonstrate that the assets in question were improperly treated as non-residential buildings (or structural components thereof) for purposes of their depreciation under section 168 of the Code. Procedures for the issuance of an appropriate judgment are established.
Based upon the record, including the stipulation of facts, the court finds as follows:
Plaintiff, Deseret Management Corporation (Deseret or plaintiff), is a Utah corporation and a holding company for various subsidiaries. The latter include Bonneville International Corporation (BIC), which owns and operates radio stations in large markets throughout the United States. From 1998 to 2000 (the relevant time period), Bruce Reese was the president and Chief Executive Officer (CEO) of BIC. In tandem with a sister company, Bonneville Holding Company (BHC), BIC was in the business of owning and operating radio stations. Often, in purchasing a radio station, BHC would acquire and hold the station's Federal Communications Commission (FCC) license,3 while BIC would acquire and hold the remainder of the station's assets. In these situations, BIC operated the radio station and paid royalties to BHC for use of the license.
On April 3, 1998, BIC and BHC exchanged certain assets of radio station KBIG-FM with Chancellor Media Corporation for those of KZLA. Both stations broadcast in the Los Angeles, California radio market (the LA Market). Consistent with the pattern described above, BHC acquired KZLA's license, while BIC acquired all of the station's other assets. After acquiring KZLA, BIC kept the country format. From 1998 to 2000, David Ervin was the general manager of KZLA, and Richard Meacham its President. In 1998 and 1999, KZLA's revenue was $17.25 million and $16.57 million, respectively. In 2000, revenue was approximately $16.4 million.4
KZLA was the only FM station that used a country music format in the LA Market between 1998 and 2000. Because this case turns upon a determination of what, if any, "goodwill" KZLA possessed in 2000, it is necessary to review some basic facts about the radio business and the LA Market.
During the time in question, Los Angeles was the second largest radio market in the country, and it was growing rapidly. Population in the LA Market grew from 13.2 million in 1998 to 13.6 million in 2000. Gross revenues for radio stations expanded from between $648.4 million and $658.2 million in 1998, to between $851 million and $914 million in 2000. By 2000, there were seventy stations in the market: seventeen Class A FM signals, twenty-two Class B FM signals, and thirty-one AM signals. FM signals tend to have greater clarity and coverage than AM signals. Within FM stations, Class A signals serve smaller areas or communities and have smaller coverage than Class B signals, which tend to cover larger metropolitan areas. One financial analyst reported that in 2000, only twenty-one of the LA stations were "viable FMs," that is, FM stations with ratings sufficiently "significant" to be considered "serious competitors."
In Los Angeles, the mountainous terrain adversely impacts the broadcast coverage of FM signals. This topography gives certain radio stations in the LA Market a few advantages over their competitors. The first of these, for some of these stations, is antenna location: the antenna farm located on Mt. Wilson offers the most elevated place in the LA Market from which to broadcast a radio signal. In 2000, of the approximately forty FM stations that were licensed to broadcast in the LA Market, only fourteen were licensed to transmit from this peak in the San Gabriel Mountains, including KZLA. A second advantage is enjoyed by stations that are exempt from FCC restrictions (dating to 1963) which limit the power stations can use to broadcast signals from elevated antenna locations such as Mt. Wilson. Seventeen Los Angeles FM stations were "grandfathered in" under those regulations because they were using power exceeding therestrictions when they were promulgated in 1963. KZLA, a Class B FM station broadcasting at a frequency of 93.9, was one of those 17 "superpower" stations. Its signal covered approximately 6,400 square kilometers, capable of reaching a population of more than 12.7 million listeners.
Like much of the country, the LA Market was dramatically impacted by the passage of the Telecommunications Act of 1996 (the Telecommunications Act). Prior to 1996, the FCC limited the number of stations that could be owned by a single entity in both a given market, as well as nationwide: a single entity could not own more than three AM stations and three FM stations in a large market such as Los Angeles, nor could it own more than thirty AM stations and thirty FM stations nationally. The Telecommunications Act relaxed these limits. After 1996, in a large market, like Los Angeles, a single entity could own up to eight commercial radio stations, so long as no more than five of them were either AM or FM. National ownership limitations were eliminated entirely. These changes prompted major consolidations within the radio industry - for instance, in March 1996, the two largest radio groups, Clear Channel and Jacor held 113 stations between them; by March 2001, they owned more than 1,200 stations. The Telecommunications Act also prompted owners to sell stations in one market and acquire them in another, seeking to consolidate their holdings.5 Consolidations like these occurred in the LA Market. Some of the transactions took the form of so-called "stick" transfers, in which the only thing the buyer desired was the FCC license (and associated dial position), the transmitter, and the tower/antenna - what one witness referred to as a "ticket to play in that market." In 1995, the three largest radio station owners in the area (CBS, Cox, and Infinity) owned nine FM and AM radio stations; by 2000, the then three largest owners (Clear Channel, Infinity, and Hispanic) controlled 22 stations.
During this same time, Spanish-language broadcasting blossomed as a driving economic force in the LA Market, with broadcasters in this genre showing an intense demand for LA stations with strong FM signals. This demographics-inspired sea change, combined with the Telecommunications Act's relaxation on ownership limits, created a demand for FCC licenses and radio stations that outpaced supply. Not surprisingly, prices for radio stations increased astronomically during this period.
A radio station is in the business of selling time to advertisers that are attempting to reach the station's listeners. Advertisers are interested in the size and demographics of a radio station's audience. Because listeners are drawn by the "format" of a radio station, a station may target specific demographics for their listener base by playing the music or other content it believes will appeal to those individuals. The station then looks to sell time to advertisers interested in reaching listeners within those demographics. The majority of radio advertising time is sold to advertising agencies, which buy on behalf of companies.
Several metrics are used to gauge the success of a radio station. One of these is market share. Arbitron is a nationally-recognized radio audience research firm. At the end of 2000, it had designated 278 different local geographic areas, or "Metros," in an attempt to reflect the audiences reached by local radio stations. One of these Metros was the LA Market, consisting of Los Angeles and Orange Counties, California. During the relevant time period,...
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