Saturday, June 2, 2018

Tax Court Rules That Being Accommodation Party In Tax Shelter Is Hard Work

This post was originally published on Forbes Mar 20, 2015

I've heard it said that one of the advantages of going to a name brand college is the people you end up meeting there.  That is how it seems to have worked out for Jason Chai.  Jason Chai was in Tax Court arguing about whether he owed self-employment tax on $2 million he received.  We'll get to that, but this is one of the cases where the story behind the story is much more interesting than the tax issues that were decided in the case.  As usual I should note, the story I am telling is what the Tax Court ended up believing.  I did not do any independent inquiries.

The Friends You Make At College

Jason Chai received a masters degree in architecture from a university in Massachusetts.  It was founded as a seminary for Congregational ministers and counts among its graduates Thomas Wentworth Higginson, one of the earlier biographers of Maragaret Fuller, the first woman granted admission to the college library, and Theodore John Kaczynski, the Unabomber.   The school, called Harvard, is about 40 miles east of Worcester.

That's where Jason Chai met Andrew Beer.  Jason started his architecture career in Los Angeles, but moved to New York in 1999.  He stayed with his Harvard buddy for a while when he first moved to New York.  Andrew ended up marrying Jason's cousin.  Jason has been a pretty successful architect , but that's not what got him to Tax Court.  What got him to Tax Court was the best part time job I have ever heard of. He was hired by Andrew Beer.  Beer was in the investment business and managed to position himself and his company Bricolage into the center of the turn of the millennium tax shelter craze that Jack Townsend referred to as a massive raid on the treasury.

Tax Shelters

Andrew Beer shows up in the book Confidence Games: Lawyers, Accountants, and the Tax Shelters  where authors Tanina Rostain and Milton Regan describe him dreaming up the PICO transaction in the wee hours of the night.  I had always thought the wee hours were in the morning, but then I always thought that debits had to equal credits, which is why I will never fully grasp turn of the millennium tax shelters, which usually are based on unbalanced entries- Debit By The Window - Credit Out The Window.

As I looked further I even found that Mr. Beer had been featured briefly in my very own blog.
NEVADA PARTNERS FUND, LLC v. U.S, Cite as 105 AFTR 2d 2010-2133, 04/30/2010
At the October 2, 2001, meeting, Williams and his attorneys met with KPMG agent Donna Bruce, who understood that the purpose of the meeting was to alleviate large gains arising from the B.C. Rogers note exchange, having been informed that the gain would amount to nearly $20,000,000.00. She told Williams that KPMG had been recommending to its clients facing the imminent prospect of large ordinary and capital gains a new strategy to be pursued through an investment advisor experienced in financial structure, hedge funds and more exotic forms of investment designed to provide tax benefits. Bruce named several investment advisors to be considered by Williams, including a hedge fund called Bricolage, LLC, in New York City, an entity owned and managed by one Andrew Beer.

Another convoluted KPMG deal that didn't work out as intended.  I think I'm going to stop studying these things as I might get confused by them.
I began writing during that phase of the tax shelter wars when tax auditors began looking like the guys who come in after the battle is over to bayonet the wounded.

We Also Serve Who Just Sign Some Stuff Now And Then

At any rate the PICO shelter and a related plan called POPS required an "accommodation party" in order to work.  Another of Beer's entities called Delta was at the center of the strategy.
The tax shelters were designed to eliminate Delta's clients' tax liabilities by generating noneconomic tax losses to offset the clients' taxable income. The tax shelters shared three key characteristics: (1) each centered around the formation of a flowthrough entity; (2) each involved a straddle comprising offsetting derivatives into which the POPS or PICO entity entered; and (3) each required a transitory partner or shareholder in the POPS or PICO entity to whom the entity allocated income from the derivatives so that a tax shelter investor could recognize offsetting tax losses. To facilitate the transactions, Delta provided a transitory partner or accommodating party. The POPS and PICO entities allocated income to the accommodating party and allocated noneconomic losses to Delta's clients to offset their large tax liabilities. Petitioner was an accommodating party. For its part, Delta received sizable fees for advising its clients on the tax shelters and facilitating the clients' participation.
Andrew Beer did not have to look far for the accommodation party he brought his Harvard buddy and now cousin-in-law in on the deal.  Jason Chai, after being assured that accountants and lawyers were vetting the deal agreed  to serve as the accommodation part in exchange for a salary of $100,000 per year.
Petitioner was an accommodating party for at least 131 tax shelters, having reported over $3.2 billion of noneconomic income, allocated to him by the tax shelters, on his 2000 and 2001 income tax returns. This income was approximately equal to the amounts of offsetting noneconomic tax losses allocated to Delta's clients. To relieve petitioner's concerns about increased tax liabilities,  Beer assured petitioner that there were strategies they could use to offset petitioner's tax liabilities on the basis of his participation in the tax shelters. Notably, petitioner received and reported offsetting losses from the POPS and PICO entities for 2000 and 2001 approximately equal to amounts of income allocated to him from the tax shelters.
This is the part of the story that has me mystified.  So Chai picked up $3.2 billion in income, so others could have $3.2 billion in losses, but somehow or other his $3.2 billion was sheltered.  When EMC founder Richard Eagan did something like this, they found an accommodating Irishman to pick up the income, but that's not Chai, who is clearly a US person.  So Chai was getting paid to be the middleman in the shelter that people were paying a lot of money for, and somehow he got a free shelter to take care of the income he picked up.  You have to wonder why Bricolage didn't just sell that shelter, the one that Chai used, to the people who were paying for shelter.  Makes me feel like Steve Buscemi trying to figure out how somebody can make money from having his own wife kidnapped.

Best Part-time Job Ever?

The main think that Jason had to actually do was to sign a lot of stuff, binders of legal documents - articles of incorporation, loan agreements, wire transfers, etc., etc.  Since he was travelling a lot, that presented some problems.  So in 2001 he formed JJC Trading, a single member LLC - and hence, presumably, a disregarded entity.  Bricolage was named non-member manager of the LLC, which was a pretty slick way around the problem. There was a point in my career where I cut way back on my hours and my compensation so I could be home for the school bus.  During that period of time I had one of the best paying part-time jobs I knew of.  It did not hold a candle to how well Jason Chai did with Bricolage
Petitioner received significant compensation from the Bricolage entities in exchange for his participation in the tax shelters. For instance, in 2000 petitioner received $1.2 million from Counterpoint as a signing bonus, and in 2001 JJC received $1 million from Delta. Counterpoint and Delta reported these payments on Forms 1099-MISC, Miscellaneous Income (Form 1099), as nonemployee compensation, and petitioner reported them as income on Forms 1040, U.S. Individual Income Tax Return, and paid the resulting tax. Petitioner also received several other payments from Bricolage and Counterpoint, totaling $100,000 per year for 2001 and 2002 and reflecting Beer's agreement with petitioner that he would receive an annual salary of $100,000 in exchange for his participation. Bricolage and Counterpoint reported all of these amounts as petitioner's wages, and petitioner paid the resulting tax.
From what I can gather there was something of a frenzy with these shelters.  Someone who was an audit partner in the Big 4 told me that he was asked to spot liquidity events that were appropriate for the shelters - I think it was a gain of $2 million or more.  There would be immediate bonus checks issues for successful referrals. In 2003 Jason received a $2 million payment.  That is what the case is about.
Before petitioner received the $2 million payment, however, he and Del Bove had exchanged several emails in February 2003 discussing the proper tax treatment of the $2 million payment. Del Bove notified petitioner that Delta was going to wire petitioner the $436,000 remaining in JJC, dissolve that entity, and pay petitioner an additional $2 million. In response, petitioner asked: “To this end, can you fill me in on how this money should be treated as far as my accountant is concerned? Will I be issued a 1099 for the whole amount?” Del Bove responded that the $2 million payment “will be reported on a 1099, so you should tax-plan accordingly.” Petitioner again asked for clarification on whether both the $2 million payment and the balance in the JJC account were going to be reported on his Forms 1099 for 2003. Del Bove responded that "[t]he amount you receive from JJC Trading is not income and, therefore, will not be reported on a 1099. That money is from what you had originally invested in JJC Trading. The [*10] 2mm we pay you will be reported on a 1099, as well as any other subsequent payments.”
And The Penalty Too
Jason tried to argue that the $2 million was a return of capital, but that did not go anywhere.  He also argued that the money was a gift, since he really was not doing all that much.  The court found, however that he was a key player.
The trial testimony supports the conclusion that the $2 million payment was compensation subject to self-employment tax. Although petitioner attempts to minimize his role in the tax shelters and describes his activities as investments, the record reflects that he provided services to Delta to facilitate the tax shelter transactions. Beer testified that petitioner's role in the tax shelters was a critical component of the transactions and the tax shelters could not have functioned as planned without petitioner's participation. Delta could not have allocated noneconomic losses to its clients without petitioner's acting as the accommodating party. The allocation of $3.2 billion of noneconomic income to petitioner enabled Delta's clients to reap the benefits of an almost equal amount of noneconomic losses to offset their taxable income. Petitioner's role was far from nominal.
Petitioner argues that because he delegated decision making authority to Bricolage, he did not perform any meaningful services for Delta (or any of the other Bricolage entities). Petitioner's income cannot escape taxation merely because he delegated certain duties to Bricolage and Beer. The risky nature and large receipts of the tax shelters provide ample justification for the high compensation relative to the low amount of personal effort involved.
Something tells me that if this were a reasonable compensation case, the government would not have been making these arguments.

The Harvard degrees and successful architecture practice were negatives when it came to getting out of the accuracy penalty. Also Mr. Chai had not provided all the correspondence to his tax adviser.  Of late I've been thinking that the IRS is to quick to propose the accuracy penalty, a sentiment Joe Kristan shares,  I'll bet Joe wouldn't object to this one.  It is actually pretty mild.

I can't help but think that there must be something more to this story given the elements that go into it, but I despair of ever being able to figure it out.  The Tax Court did note that it had turned down an IRS attempt to pump up the deficiency by a factor of ten, so Mr. Chai may be back in Tax Court next year - or the year after.  Maybe we will learn more then.

Other Coverage

Lew Taishoff covered the case in his colorful style.
Jason was frequently a visitor to Andrew’s office, signing away his life, fortune and sacred honor as partner in any number of fiddles, and receiving a piece of the bounty bestowed on Andrew by his tax-dodging clientele.
Lew's movie reference was The Front.

Ed Zollars has already incorporated the decision into a CPE course, which is pretty fast work.

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