Union Carbide Corp. v. Huddleston

• Decision Date: 03 May 1993
• Docket Number: No. 01-S-01-9109-CH-00082,01-S-01-9109-CH-00082
• Parties: UNION CARBIDE CORPORATION, Plaintiff-Appellee, v. Joe B. HUDDLESTON, Commissioner of Revenue, State of Tennessee, Defendant-Appellant.
• Court: Tennessee Supreme Court

Page 87

854 S.W.2d 87

UNION CARBIDE CORPORATION, Plaintiff-Appellee, v. Joe B. HUDDLESTON, Commissioner of Revenue, State of Tennessee, Defendant-Appellant.

No. 01-S-01-9109-CH-00082.

Supreme Court of Tennessee at Nashville.

May 3, 1993.

Charles W. Burson, Atty. Gen. & Reporter, William E. Young, Asst. Atty. Gen., Nashville, for defendant-appellant.

Charles A. Trost, J. Leigh Griffith, Joseph A. Woodruff, Waller, Lansden, Dortch & Davis, Nashville (Jerry L. Robinson, Sr. Tax Counsel, Union Carbide Corp., Danbury, CT, of counsel), for plaintiff-appellee.

OPINION

ANDERSON, Justice.

The question we are asked to decide in this direct excise tax appeal is whether or not the taxpayer's capital gains in 1986 from the sale of assets constituted "business earnings," as defined in Tenn.Code Ann. § 67-4-804(a)(1) ¹. Relying on General Care Corp. v. Olsen, 705 S.W.2d 642 (Tenn.1986), the Chancellor found that the taxpayer's 1986 capital gains were "nonbusiness earnings," and therefore not taxable in Tennessee. We agree and affirm.

FACTUAL BACKGROUND

The facts in this record are, for the most part, stipulated. The balance of the proof is largely undisputed. We summarize it as follows:

The plaintiff-taxpayer, Union Carbide Corporation ("Union Carbide"), is a multi-national corporation organized and incorporated under the laws of New York with its principal place of business and commercial domicile located in Danbury, Connecticut. Union Carbide does business all over the world, including Tennessee, where it owns and operates carbon products plants in the Tennessee cities of Clarksville and Columbia.

Prior to the 1986 disposition of assets that is the subject of this litigation, Union Carbide's operations were divided into five industry segments or divisions, each of which was composed of a number of distinct lines of business. The five industry segments or divisions consisted of:

(a) Petrochemicals consisting of the production and sale of polyolefins, ethylene oxide/glycol, industrial chemicals, solvents and coatings materials, and international petrochemicals;

(b) Industrial Gases consisting of the production and sale of atmospheric gases, process gases, specialty gases and industrial gas services;

(c) Metals and Carbon Products consisting of the production and sale of electrode systems, carbon products and metals;

(d) Consumer Products consisting of the production and sale of battery products, plastic wrap and bags, and automotive products; and

(e) Technology Services and Specialty Products consisting of the production and sale of agricultural products, specialty chemicals, silicones and urethane intermediates, engineering and technology services, electronic components and materials, and medical and industrial services.

In August of 1985, Union Carbide announced a restructuring program under which it planned to repurchase some of the outstanding shares of its common stock and divest itself of certain non-strategic assets and businesses. The assets Union Carbide contemplated selling under the 1985 restructuring program included (1) the Films-Packaging Business of the Technology Services and Specialty Products Division, (2) the Specialty Polymers and Advanced Composites Business also of the Technology Services and Specialty Products Division, and (3) the Metals Business of the Metals and Carbon Products Division.

The restructuring program was necessitated by financial difficulties stemming from the Bhopal, India, accident. In December of 1984, gas escaped from a Union Carbide storage tank in Bhopal, India, and caused numerous fatalities. Union Carbide's liabilities as a result of this accident caused its stock shares to decrease in value from $55 per share to $32 per share in the ten days immediately following the accident. In addition, the accident resulted in complex litigation against Union Carbide which was eventually settled on February 14, 1989, for 470 million dollars.

Before the 1985 restructuring program was completed, Union Carbide learned that it was the target of a hostile tender offer of $68 per share by G.A.F., a New Jersey chemical company. The tender offer stated that G.A.F. intended to sell substantially all of the Consumer Products Division, the Metals and Carbon Products Division, and a substantial number of businesses in the Technology Services and Specialty Products Division.

In response, Union Carbide's Board of Directors examined the tender offer and, with the advice of the company's financial advisor, Morgan Stanley and Co., Inc., determined that the G.A.F. offer was inadequate. As a result, the Board informed the shareholders that accepting the tender offer would not be in their best interests and recommended that they not tender their shares pursuant to the G.A.F. offer.

In an effort to counter the G.A.F. offer, the Board of Directors commenced its own exchange offer of $85 per share to the shareholders, which was ultimately successful and resulted in the abandonment of the unsolicited offer by G.A.F. Pursuant to Union Carbide's exchange offer, approximately 38,800,000 shares of its stock, which comprised approximately 56 percent of the shares then outstanding, were repurchased for approximately 3.297 billion dollars from the shareholders. In connection with the exchange offer, approximately 1.05 billion dollars was distributed to the remaining shareholders after redemption of the 38,800,000 shares. Thus, the total amount distributed to Union Carbide's shareholders in connection with the exchange offer was approximately 4.347 billion dollars.

To raise the 4.347 billion dollars, Union Carbide sold and completely liquidated seven distinct lines of business in 1986. The seven lines of business sold by Union Carbide comprised all of its Consumer Products Division, and most of the businesses in its Technology Services and Specialty Products Division. In addition, Union Carbide sold its corporate headquarters building in Danbury, Connecticut. These sales, however, only raised 3.637 billion dollars. The remainder of the money necessary to make the 4.347 billion dollars distribution to the shareholders had to be borrowed by Union Carbide.

With respect to the capital gains realized on the 1986 sales of the seven lines of business and the corporate headquarters building, Union Carbide initially reported them as "business earnings" on its 1986 Tennessee Foreign Corporate Franchise and Excise Tax Return. Shortly after filing its 1986 return, however, Union Carbide filed an amended return, which reported the capital gains as "nonbusiness earnings," and requested a refund of 1986 excise taxes in the amount of $925,021. The Tennessee Department of Revenue denied Union Carbide's claim, and as a result, Union Carbide instituted this refund litigation.

Throughout its history, Union Carbide has engaged in various transactions in which it acquired or sold business assets. As a result of its practices in acquiring and divesting itself of assets, and in an effort to maintain some expertise in the area, Union Carbide created an Acquisitions and Divestiture Group in 1977 to control, manage, and negotiate its acquisitions and divestitures. From 1980 to 1988, the Acquisitions and Divestiture Group of Union Carbide oversaw several acquisitions and divestitures of stock in other companies for 5 million dollars or more. The acquisitions during this period included: (1) Catalyst Technology, Inc. for 9 million dollars in 1984, (2) Katalistiks International B.V. for 101 million dollars in 1984, (3) STP Corporation for 87 million dollars in 1985, and (4) Amerchol Corporation for 22 million dollars in 1986. The divestitures included: (1) Jacques Seeds Co. for approximately 40 million dollars in 1980, (2) Black Marlin Pipeline Co. for 17 million dollars in 1984, and (3) Catalyst Technology, Inc. for 7.5 million dollars in 1986.

Although it had engaged in the divestitures described above, Union Carbide had never engaged in a transaction similar to the 1986 exchange offer. The 1986 disposition of assets was different from previous divestitures in that the proceeds of the 1986 sales were distributed to Union Carbide's shareholders. In all prior divestitures of business assets, the proceeds were re-invested in Union Carbide's ongoing business operations.

The 1986 disposition of assets also differed from previous divestitures in several other respects. First, the 1986 dispositions involved seven complete lines of business in which Union Carbide ceased to be engaged following the disposition. Union Carbide had never before liquidated a complete line of business. Second, the 1986 dispositions involved profitable lines of business, including its most profitable division and "crown jewel," its Consumer Products Division. All prior dispositions had involved unprofitable business assets. Third, the capital gains from the 1986 dispositions were reported for financial accounting purposes as income from "discontinued operations," while the income resulting from all prior dispositions of assets was reported for financial accounting purposes as "ordinary operating income."

Finally, the 1986 dispositions required by the Bhopal disaster and the ensuing hostile tender offer were of a magnitude vastly larger than all prior divestitures combined. From 1973 to 1988, excluding 1986, Union Carbide had combined divestitures totaling 875.2 million dollars. In 1986, Union Carbide had divestitures totaling 3.652 billion dollars. Other than 1986, Union Carbide only had three years between 1973 and 1988 in which divestitures were over 36 million dollars. In 1980, divestitures totaled 134 million dollars, while in 1981 divestitures totaled 292.5 million dollars, and in 1985, divestitures totaled 276 million dollars. Moreover, as a result of the 1986 dispositions, Union Carbide's net worth was reduced from approximately four billion dollars to approximately one billion dollars, and its total number of employees decreased from...