June 13, 2013
SECURITIES AND EXCHANGE COMMISSION, Plaintiff,
SAMUEL WYLY, CHARLES J. WYLY, JR., MICHAEL C. FRENCH, AND LOUIS J. SCHAUFELE III, Defendants.
Gregory Nelson Miller, Esq., Alan M. Lieberman, Esq., John David Worland, Jr., Esq., Martin Louis Zerwitz, Esq., United States Securities and Exchange Commission, 100 F Street, N.E., Washington, DC 20549, (202) 551-4469, for the SEC.
William Andrew Brewer, III, Esq., Michael J. Collins, Esq., James S. Renard, Esq., Michael L. Smith, Esq., Bickel & Brewer, 767 Fifth Avenue, 50th Floor New York, NY 10153, (212) 489-1400, for Samuel E. Wyly.
Stephen D. Susman, Esq., Mark H. Hatch-Miller, Esq., Susman Godfrey, LLP, 560 Lexington Avenue, 15th Floor, New York, NY 10022, (212) 336-8330, Terrell W. Oxford, Esq., David D. Shank, Esq., Susman Godfrey, LLP, 901 Main Street, Suite 5100, Dallas, TX 75202, (214) 754-1900, for Donald R. Miller, Jr.
Martin Joel Auerbach, Esq., Law Offices of Martin J. Auerbach, 1185 Avenue of the Americas, 31st Floor, New York, New York 10105, (212) 704-4347, Laura Elizabeth Neish, Esq., Zuckerman Spaeder, LLP, 1185 Avenue of the Americas, 31st Floor, New York, New York 10105, (212) 704-9600, for Louis J. Schaufele, III.
Joshua Klein, Esq., Nelson A. Boxer, Esq., Petrillo Klein & Boxer LLP, 655 Third Avenue, 22nd Floor, New York, NY 10017, (212) 370-0330, for Michael C. French.
OPINION AND ORDER
SHIRA A. SCHEINDLIN, District Judge.
In an Opinion and Order dated June 6, 2013 ("June 6 Opinion"), I held, among other things, that the Securities and Exchange Commission's ("SEC") penalty claims against defendants in this case were time barred insofar as they accrued more than five years before tolling agreements with the SEC took effect. Therefore, for those claims against the Wylys that accrued prior to February 1, 2001, the only monetary relief available is disgorgement. For the Wylys' alleged failure to disclose their beneficial ownership of certain securities in SEC filings, the SEC contends that the measure of disgorgement is the amount of federal income taxes that the Wylys allegedly avoided by transferring stock options to the Offshore Corporations and failing to disclose their control over the options. The sole issue addressed in this Opinion is whether the SEC has the authority to seek disgorgement measured as the amount of federal income taxes it claims the Wylys would have been required to pay if they had disclosed their beneficial ownership of the securities in question, or whether such relief impermissibly impinges upon the Secretary of the Treasury's ("Secretary") exclusive authority to assess and collect taxes.
A detailed factual background of the case is set forth in the March 31, 2011 Motion to Dismiss Opinion and the June 6 Opinion. Only the background relevant to disgorgement is discussed here. The factual predicate for the disgorgement of unpaid taxes is that "[t]he Wylys set up their overseas trusts to create the appearance of non-grantor' trusts, which would make them separate taxable entities and provide favorable tax treatment of capital gains on transactions involving the trust-held securities... [when, in fact, ] the trusts were grantor trusts because the Wylys exercised dominion and control over them." As non-grantor trusts, the tax rates on the trusts' capital gains would be "Isle of Man rates, which are essentially zero[, ]" whereas as grantor trusts, they would be taxed at the rate of the beneficial owner, making capital gains from the sale of overseas shares income to the Wylys and taxable at the applicable U.S. capital gains rate. "By misrepresenting the beneficial ownership of the trusts, and by misrepresenting the dominion and control over the trust assets, the Wylys created an unjust tax benefit for themselves."
A Wyly family employee, Keeley Hennington, recognized the relationship between the non-disclosure of beneficial ownership of securities and the Wylys' tax avoidance measures. When, as a part of a proxy battle, Samuel Wyly desired to disclose his ownership of the stock held through the Wyly family's Offshore System, Hennington warned in a February 26, 2002 memorandum:
[T]here needs to be an answer [for the increase in shares from what was previously publicly represented] that does not jeopardize the offshore system... Our friendly IRS agent is still looming around and although he has verbally agreed not to look further at any foreign entities or trusts, I would not want to give him any fresh ammunition.
In August 2003, the Wylys approached the IRS about a potential settlement of issues regarding tax treatment of the Offshore Trusts. A memorandum sent to the IRS by Wyly family employees in advance of the August 12 meeting stated, in relevant part, that "1992 Trusts were formed under foreign law by Individual and were intended to be foreign non-grantor trusts" and the "1994 and 1995 Trusts were formed under foreign law and were intended to be treated as foreign grantor trusts." As to tax treatment, "based upon the position that the 1992 Trusts were not grantor trusts where Individual was the grantor and the 1994 and 1995 Trusts were foreign grantor trusts, no U.S. person included in income any amount... with respect to the 1992, 1994 and 1995 Trusts."
One IRS official, Ronald Pinsky, expressed concern at the meeting with the Wylys' "reporting [to the SEC] of the initial transactions." Meeting minutes reflect that Pinsky asked "[h]ave you checked SEC filings, " "[w]ere [the Wylys] significant enough shareholders that their holdings would be listed on SEC filings, " and "[did] SEC filings show beneficial interest in shares?"
III. APPLICABLE LAW
The securities law violations at issue arise from the Section 13(d) requirement that any person who acquires "beneficial ownership" of more than five percent of a class of registered securities must file a statement disclosing such ownership with the SEC. It is well-established that "[o]nce the district court has found federal securities law violations, it has broad equitable power to fashion appropriate remedies, including ordering that culpable defendants disgorge their profits." The primary purpose of disgorgement is "to deprive violators of their ill-gotten gains, thereby effectuating the deterrence objectives of those laws." The authority to order disgorgement includes the authority to "calculat[e] the amount to be disgorged, " and that calculation "need only be a reasonable approximation of profits causally connected to the violation." "District courts [are] given wide latitude in... approximat[ing] the losses avoided by [defendants] that [a]re causally connected to the securities fraud violations." Moreover, "any risk of uncertainty [in calculating disgorgement] should fall on the wrongdoer whose illegal conduct created that uncertainty.'"
At the same time, Congress has granted exclusive authority to assess and collect taxes to the Secretary and mandates compliance with specific procedures in exercising this authority. Assessment of taxes must be done "by recording the liability of the taxpayer in the office of the Secretary in accordance with the rules or regulations prescribed by the Secretary." The Secretary also has exclusive authority to "collect the taxes imposed by the internal revenue laws." The Internal Revenue Code ("Tax Code") states that "[n]o civil action for the collection or recovery of taxes, or of any fine, penalty or forfeiture, shall be commenced unless the Secretary authorizes or sanctions the proceedings and the Attorney General or his delegates directs that the action be commenced."
A. The SEC Is Not Foreclosed as a Matter of Law from Seeking Disgorgement Measured as a Tax Benefit
Defendants argue that the SEC is foreclosed as a matter of law from seeking disgorgement in the amount of the taxes that the Wylys avoided because, in substance, this remedy is the equivalent of a tax collection action, and thus must comport with the requirements set forth in the Tax Code, which delegates the authority to collect taxes to the Secretary exclusively. Whether the SEC has the authority to seek disgorgement in the form of unpaid federal income taxes is truly an issue of first impression - no court has ever addressed the question, indeed the SEC acknowledges that it has never before sought unassessed federal taxes as a measure of disgorgement.
As a formal matter, this is not a "civil action for the collection or recovery of taxes, " which would clearly fall within the exclusive authority of the IRS under Section 7401 of the Tax Code. Rather, this is a civil action for securities law violations, the remedy for which is measured by the amount of taxes avoided. There is no explicit prohibition, either in the Tax Code or in the Exchange Act, on using tax benefits as a measure of unjust enrichment in other contexts. Nor is there any express limitation on the SEC's authority to calculate and disgorge any "reasonable approximation of profits causally connected to the violation.'" The cases on which Defendants rely to argue that this remedy is barred are therefore inapposite.
For example, in United States ex rel. Lissack v. Sakura Global Capital Markets, Inc ., the Second Circuit addressed the scope of the IRS's exclusive tax authority in the context of the False Claims Act ("FCA"). The FCA contains an explicit statutory exemption for "claims, records, or statements made under the Internal Revenue Code of 1986... which reserved discretion to prosecute tax violations to the IRS and barred FCA actions based on tax violations [(the Tax Bar')]." The Second Circuit explained that the Tax Bar codified case law "which reserved discretion to prosecute tax violations to the IRS" and that "[t]he conclusion that the IRS has exclusive jurisdiction over tax matters stems in part from [Section] 7401 of the Tax Code."
It was undisputed in Lissack that the Tax Bar foreclosed FCA claims "seeking to recover taxes that citizens have avoided." The Second Circuit, while recognizing that Lissack did not characterize his claim as one seeking to "collect taxes" held that the claim nonetheless "f[e]ll squarely within the language and evident intent of the Tax Bar [where] the very basis for Lissack's case depends entirely on a purported violation of the Tax Code [and] the IRS has authority to recover the precise amounts Lissack is seeking in this action." Lissack is distinguishable from this case for several reasons.
First , no analogue to the FCA Tax Bar exists in the securities context. Second , the Second Circuit emphasized in Lissack that the purpose of the Tax Bar was "to prevent private litigants from interfering with the IRS's efforts to enforce the tax laws." To the contrary, the SEC has a broad grant to pursue its central mission of making securities law violations unprofitable by seeking disgorgement. Moreover, two government agencies are generally assumed capable of "administering their [overlapping] obligations and yet avoid[ing] inconsistency." Third , the Tax Code is irrelevant to the success of the SEC's claims in this case - only the requested remedy is measured by reference to provisions of the Tax Code - therefore the SEC's requested remedy does not literally run afoul of Section 7401. In the absence of a clear statutory mandate or any directive from a higher court I decline to deprive the SEC of a potentially powerful arrow in its quiver for ensuring that those who violate the securities laws do not retain their unlawful gains.
B. The SEC Has Produced Evidence of a Causal Connection Between the Alleged Securities Violations and the Taxes Allegedly Avoided
Defendants argue that even if the SEC is not barred from seeking disgorgement measured by reference to the Tax Code, there is no "causal link between the securities law violations alleged and what the SEC contends constitute unjust tax benefits." The SEC responds that the "tax benefits sought here are a direct and primary measure of the Wylys' ill-gotten gains."
In support of the SEC's contention that the tax benefits it seeks to disgorge are causally connected to the alleged securities fraud, the SEC cites the following evidence. The Wylys acknowledged that the Offshore System was created at least in part for tax advantages. Hennington warned the Wylys in a February 26, 2002 memorandum that the IRS might look at SEC filings to search for inconsistencies between the Wylys' SEC disclosures and their tax filings. When the Wylys approached the IRS in August 2003 about a possible tax settlement relating to the Offshore Trusts, the IRS staff asked whether the Wylys had disclosed these matters in any SEC filings. The SEC contends that this is because "[a]ny declaration of beneficial ownership in an SEC filing could constitute an admission for purposes of a tax case" or "evidence a knowing state of mind for any tax fraud or criminal proceeding."
Minutes from an August 12, 2003 meeting with the IRS regarding the status of the trusts and a potential settlement highlight the connection between the SEC filing requirements and the tax treatment. Participants recognized a "serious risk they were grantor trusts from [the] beginning" and, in connection with this discussion, IRS Agent Pinsky asked "[h]ave you checked SEC filing" and "[w]ere they significant enough shareholders that their holdings would be listed on SEC filings?"
The SEC argues further that the 13(d) filing requirements and the Tax Code's grantor trust tax provisions overlap substantially because "[t]he main thrust of the grantor trust provisions is that the trust will be ignored and the grantor treated as the appropriate taxpayer whenever the grantor has substantially unfettered powers of disposition. " "If a grantor is deemed an owner' of a portion of a trust, that portion attributable to the grantor must be included in the true owner's taxable income." Sections 672 through 679 of the Tax Code outline the ways in which a grantor may be deemed an owner of a trust. At oral argument, the SEC relied on Section 674(a), which provides that: "[t]he grantor shall be treated as the owner of any portion of a trust in respect of which the beneficial enjoyment of the corpus or the income therefrom is subject to a power of disposition , exercisable by the grantor or a nonadverse party, or both, without the approval or consent of any adverse party." A beneficial owner for purposes of 13(d) filing requirements is defined in Rule 13d-3(a) as "any person who, directly or indirectly... has or shares (1) [v]oting power...; and/or (2) investment power which includes the power to dispose, or to direct the disposition of, such security ."
I find that the SEC has produced sufficient evidence of a causal connection between the taxes allegedly avoided and the alleged securities violations. Therefore, if the SEC is successful on its fraud claims, the parties will have the opportunity to litigate to the Court whether there is a sufficient causal connection between the securities violations and the tax avoidance.
C. Threat of Double Recovery
This Opinion would be incomplete if it did not address the potential for double enforcement by both the IRS and the SEC. As the SEC points out, the IRS was investigating these Offshore Trusts as early as 2003, and ultimately declined to pursue tax liability against the Wylys on the basis of these trusts. Neither the SEC nor Defendants could answer definitively whether the IRS would be foreclosed by the governing statute of limitations from pursuing an action against the Wylys now. I would welcome the Secretary's input on the question. However, the specter of the IRS reversing its previous decision not to pursue tax liability against the Wylys does not warrant precluding the SEC from pursuing its own mission of deterring securities fraud.
For the foregoing reasons, if the Wylys are found liable for the fraud claims, the SEC will have the opportunity to make its case for disgorgement at that time. A conference is scheduled for July 15, 2013 at 4:30 pm. The Clerk of Court is directed to close this motion (Docket No. 169).