Brown Group, Inc. v. CIR ( 1996 )

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No. 95-2110
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Brown Group, Inc. and *
its Subsidiaries, *
*
Appellant, *
*
v. * Appeal from the United States
* Tax Court
Commissioner of *
Internal Revenue, *
*
Appellee. *
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Submitted: December 14, 1995
Filed: January 25, 1996
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Before FAGG, Circuit Judge, GARTH,* Senior Circuit Judge, WOLLMAN,
Circuit Judge.
GARTH, Senior Circuit Judge.
This is an appeal from the en banc decision by the United
States Tax Court (the "Tax Court"), assessing taxes against
appellant, the Brown Group, Inc. ("the Brown Group") and its
subsidiaries, on the commission distributions received by the Brown
Group's wholly-owned Cayman Islands subsidiary, Brown Cayman, Ltd.
("BCL"), under Subpart F of the Internal Revenue Code (codified at
26 U.S.C. § 951 et seq.).
The issue we address on appeal is whether BCL's distributive
*. Honorable Leonard I. Garth, Senior U.S. Circuit
Judge for the United States Court of Appeals for the
Third Circuit, sitting by designation.
share of a foreign partnership's earnings (Brinco partnership)
should be taxed to the Brown Group under Subpart F of the Internal
Revenue Code. We hold that a foreign partner's distributive share
of foreign partnership income cannot be deemed to be "Subpart F
income" where the commissions at issue did not constitute "Subpart
F income" under the pre-1987 statute, 26 U.S.C. § 954(d)(3), in
that the foreign partnership (Brinco) did not control a controlled
foreign corporation such as BCL. Accordingly, we vacate the
decision of the Tax Court assessing an income tax deficiency
against the Brown Group for the tax year ending November 1, 1986.
I.
The Brown Group is the publicly traded parent corporation of
an affiliated group of corporations filing a consolidated income
tax return. The Brown Group, whose principal place of business is
St. Louis, Missouri, manufactured and sold footwear in the United
States. The Brown Group imported footwear from Brazil and other
countries and, up until 1985, used a number of independent agents
to purchase Brazilian-manufactured footwear.
The Brown Group includes a wholly owned subsidiary, Brown
Group International, Inc. ("BGII"), a Delaware corporation. BGII,
in turn, is the parent of a wholly owned subsidiary, BCL, a Cayman
Islands corporation. The parties have stipulated that BGII was a
"United States shareholder" of BCL, and that BCL was a "controlled
foreign corporation" ("CFC") within the meaning of the pre-1987
statutes, 26 U.S.C. §§ 957(a), 954(d)(1). Indeed, BCL is a CFC
2
even under the post-1987 section 954(d)(1) as amended.
In 1985, the Brown Group decided to consolidate its buying
power in Brazil by using only one purchasing agent there. The
Brown Group formed Brinco P/S ("Brinco"), a limited foreign
partnership, to be that purchasing agent, with the view toward
attracting Mr. Ted Presti and Mr. Delcio Birck to purchase
Brazilian footwear exclusively for the Brown Group. Brinco was
structured as a partnership because this allowed the Brown Group to
pay Presti a salary higher than that allowed within the Brown
Group's existing payroll structure. It also allowed Presti and
Birck to have entrepreneurial interests in Brinco's operations;
and enabled the partners to avoid Brazilian currency instability.
Presti was the managing partner of Brinco. BCL held an 88%
interest in Brinco, with the other 12% held by the other partners.2
For ease in understanding the relationship of the various
companies to which we have made reference, we include a schematic
diagram of the various enterprises. This diagram appeared in both
parties' briefs on appeal.
2. Presti owned Pidge, Inc., which in turn held a wholly-owned
subsidiary, T.P. Cayman, Ltd. T.P. Cayman held a 10% interest in
Brinco. Birck held a 2% interest in Brinco.
3
+))))))))))))))),
* BROWN GROUP, * TED PRESTI
* INC. * *
.)))))))0)))))))- *
* 100% * 100%
+)))))))))2))))))))), +)))))))))2))))))))),
* BROWN GROUP * * PIDGE, INC. *
* INTERNATIONAL, INC* * *
.)))))))))0)))))))))- .)))))))))0)))))))))-
* 100% * 100%
+)))))))2))))))), +))))))))))2)))))))))),
* BROWN CAYMAN, * * T.P. CAYMAN, LTD. * DELCIO BIRCK
* LTD. * * * *
.)))))))0)))))))- .))))))))))0))))))))))- *
* 88% * 10% * 2%
* 64444444444N44444444447 *
.))))))))))))))M BRINCO K)))))))))-
5 PARTNERSHIP 5
94444444444444444444448
During 1985 and 1986, Brinco served as the purchasing agent
for BGII with respect to footwear manufactured in Brazil. BGII
paid Brinco a 10% commission for acting as its Brazilian purchasing
agent. This commission was based on the purchase price of the
footwear. BGII included the commissions paid to Brinco in its cost
of goods sold. All of Brinco's income consisted of commission
income. BCL, as a partner owning a 88% interest in Brinco,
received a distributive share of Brinco's income. Brinco was
dissolved on October 31, 1987.
On October 7, 1991, the IRS issued a Notice of Deficiency
against the Brown Group in the amount of $388,992.85 for the tax
year which ended November 1, 1986, on the ground that BCL's
distributive share of Brinco's earnings was "foreign base company
sales income" that was includable as "Subpart F income" taxable to
the Brown Group under sections 951, 952, 954, and 701-709 of the
Internal Revenue Code.
4
On January 2, 1992, the Brown Group filed a petition for
redetermination of the IRS's assessment of an income tax
deficiency. The case was tried before Tax Court Judge Julian
Jacobs on March 9, 1993. On April 12, 1994, Judge Jacobs filed an
opinion in favor of the Brown Group.
The IRS moved for reconsideration by motion filed May 12,
1994, contending that Judge Jacob's opinion was "unnecessarily
broad and can reasonably be interpreted in a manner that
effectively repeals virtually all of the subpart F provisions of
the Code." The motion for reconsideration was granted on September
27, 1994, and the case was resubmitted to the entire Tax Court.
Without further briefing or argument, the Tax Court ordered
that decision be entered for the IRS on January 25, 1995. Seven
judges (Halpern, Hamblen, Parker, Cohen, Swift, Parr, and Beghe,
JJ.) joined in the majority opinion. Of the seven judges, two
judges (Swift and Beghe, JJ.) filed or joined in separate
concurrences. Two judges who had not joined the majority opinion
(Ruwe and Chiechi, JJ.) each filed separate concurrences. Three
judges (Jacobs, Chabot, and Laro, JJ.) joined in a dissent authored
by Judge Jacobs.
On January 30, 1995, the Tax Court entered its decision
assessing an income tax deficiency in the amount of $388,992.85
against the Brown Group for the tax year ending November 1, 1986.
The Brown Group has appealed to this Court.
5
II.3
A.
Under Subpart F of the Internal Revenue Code, codified at 26
U.S.C. § 951 et seq., a United States shareholder4 that controls a
foreign corporation for an uninterrupted period of thirty or more
days must include in its taxable gross income, its pro rata share
of the controlled foreign corporation's "Subpart F" income. 26
U.S.C. § 951(a)(1).5
"Subpart F income" is defined as four types of income under
section 952(a). The only type of "Subpart F income" involved in
this case is "foreign base company income." 26 U.S.C. § 952(a)(2).
There are five different types of "foreign base company
income," as defined under section 954(a). The only type involved
in this case is "foreign base company sales income."
"Foreign base company sales income" is defined in relevant
3. Because the tax year at issue is 1986, the Internal Revenue
Code that was in effect in 1986 applies to this case. Therefore,
except as otherwise identified, all of the references to the
Internal Revenue Code in this opinion are to the version of those
sections of the Code that existed in 1986.
4. A "United States shareholder" is a "United States person"
who owns or is considered as owning 10% or more of the total
combined voting power of all classes of stock entitled to vote,
of a controlled foreign corporation. 26 U.S.C. § 951(b). A
"United States person" includes a citizen or resident of the
United States, a domestic partnership, a domestic corporation,
and certain trusts and estates. 26 U.S.C. §§ 957(d),
7701(a)(30).
5. A "controlled foreign corporation" is any foreign
corporation of which more than 50% of the total combined voting
power of all classes of stock entitled to vote is owned or is
considered as owned by "United States shareholders" on any day
during the taxable year. 26 U.S.C. § 957(a).
6
part as:
Income . . . derived in connection with the purchase of
personal property from any person and its sale to a related
person, or the purchase of personal property from any person
on behalf of a related person where --
(A) the property which is purchased . .
. is manufactured, produced, grown, or
extracted outside the country under the laws
of which the controlled foreign corporation is
created or organized, and
(B) . . . in the case of property
purchased on behalf of a related person, is
purchased for use, consumption, or disposition
outside such foreign country.
26 U.S.C. § 954(d)(1) (emphases added).
Under the version of section 954(d)(3) in effect for the
taxable year of 1986, a "related person" is defined as:
(A) an individual, partnership, trust, or estate which
controls the controlled foreign corporation; or (B) a
corporation which controls, or is controlled by, the
controlled foreign corporation; or (C) a corporation
which is controlled by the same person(s) which control
the controlled foreign corporation.
26 U.S.C. § 954(d)(3) (emphases added). We are concerned here only
with section 954(d)(3)(a) which requires that in order to be a
"related person," Brinco, a foreign partnership, must control a
controlled foreign corporation - in this case, BCL. For purposes
of this section, "control" is defined as "the ownership, directly
or indirectly, of stock possessing more than fifty percent of the
total combined voting power of all classes of stock entitled to
vote." Id.
B.
In this case, the parties have stipulated that BGII is a
"United States shareholder" and BCL is a "controlled foreign
7
corporation." It is undisputed that Brinco was not a "related
person," as defined in 26 U.S.C. § 954(d)(3), to either BCL or
BGII. It is also undisputed that BGII was a "related person" to
BCL. The IRS has conceded that Brinco was not a sham partnership.
III.
The present case boils down to a very discrete question of
law: whether BCL's distributive share of Brinco's partnership
earnings (commissions) constituted "Subpart F income," under 26
U.S.C. § 954(d)(3), given that the commissions did not constitute
"Subpart F income" when earned by Brinco. We exercise de novo
review of this question of law. Jacobson v. Commissioner, 963 F.2d
218, 219 (8th Cir. 1992).
We hold that the Tax Court erred in ignoring the partnership
entity in characterizing BCL's earnings as taxable "Subpart F
income." Instead, we are persuaded by, and adopt, the reasoning
and holding of Judge Jacobs's January 25, 1995 opinion which
dissented from the Tax Court's en banc opinion.
It is not disputed that under section 954(d)(3), as that
statute existed in 1986, Brinco was not a "related person" to
either BGII or BCL. Moreover, this conclusion is supported by the
plain language of the statute. Brinco is not a corporation.
Hence, the only portion of the "related person" definition that
could apply to Brinco is that of a "partnership . . . which
controls the controlled foreign corporation." 26 U.S.C.
§ 954(d)(3)(A). However Brinco did not control BCL but rather was
8
controlled by BCL. Thus, Brinco was not a "related person" to
BGII. It follows therefore that BGII was not a person "related" to
Brinco.6
Because Brinco earned its commission income on behalf of an
unrelated person, BGII, that income was not "foreign company sales
income" for purposes of Subpart F. Given that partnership income
is characterized at the partnership level, the income earned by
Brinco retained its character of being not "Subpart F income" when
distributed to BCL. Accordingly, BGII (and thus its parent, the
Brown Group), under the pre-1987 version of section 954(d)(3),
cannot be assessed income tax on Brinco's partnership earnings
which were distributed to BCL.
We find this analysis to be consistent with the well-
established principle that income is to be characterized at the
partnership level and that such income retains its character when
distributed to the individual partners.
In United States v. Basye, 410 U.S. 441 (1973), for example,
the Supreme Court held that individual partners must include as
taxable income, their distributive share of payments made to a
6. At oral argument the IRS argued that BGII is a "related
person" because it is related to BCL, and that Brinco was
therefore earning its commission income "on behalf of" a "related
person." The IRS provides no authority for its conclusion that
by "related person," the pre-1987 version of section 954(d)(3)
meant to reach persons unrelated to the entity allegedly earning
the Subpart F income (Brinco).
Furthermore, even if we were to accept the IRS's broad
interpretation of "related person," it is irrelevant to the
present inquiry because Brinco is not a controlled foreign
corporation, and therefore its income, whether earned on behalf
of a "related person" or not, cannot be characterized as Subpart
F income.
9
retirement trust fund that was compensation to the partnership for
services rendered by the partnership. The Court recited a familiar
principle of income taxation to the effect that "partners are
taxable on their distributive or proportionate shares of current
partnership income irrespective of whether that income is actually
distributed to them." Basye, U.S. at 447-48.7 In the instant
case, of course, Brinco's commissions were actually distributed to
its partners in the respective proportions to which they were
entitled. Hence BCL received 88% of the commissions earned by
Brinco.
The Court in Basye further stated that:
[W]hile the partnership itself pays no taxes, 26 U.S.C.
§ 701, it must report the income it generates and such
income must be calculated in largely the same manner as
an individual computes his personal income. For this
purpose, then, the partnership is regarded as an
independently recognizable entity apart from the
aggregate of its partners. Once its income is
ascertained and reported, its existence may be
disregarded since each partner must pay a tax on a
portion of the total income as if the partnership were
merely an agent or conduit through which the income is
passed.
Id. at 448. "The legislative history indicates, and the
commentators agree, that partnerships are entities for purposes of
calculating and filing informational returns but that they are
7. In Basye, the Court upheld the partnership principle that
the partners were required to pay taxes on their distributive
shares even in the situation where none of the partners were
eligible to receive the amounts in his contingent or tentative
account prior to retirement, even though no interest in the
account was deemed to vest in a particular beneficiary before
retirement, and even though a partner could forfeit his interest
in the retirement trust fund under a number of circumstances,
such as by taking pre-retirement severance. Id. at 441, 444-45.
10
conduits through which the taxpaying obligation passes to the
individual partners in accord with their distributive shares." Id.
at 448 n. 8. See, e.g., Pleasant Summit Land Corp. v.
Commissioner, 863 F.2d 263, 272 (3d Cir. 1988) (in determining
whether individual partners can claim losses from partnership's
purchase of property, the analysis must be made of the investment
from the point of view of the partnership, not of the individual
partners), cert. denied, 493 U.S. 901 (1989); Davis v.
Commissioner, 74 T.C. 881, 895 (1980) (stating that the language of
§ 702(b) "has been consistently interpreted to mean that the
character of partnership income is determined at the partnership
level"), aff'd, 746 F.2d 357 (6th Cir. 1984).8
Although our holding may result in a tax windfall to the Brown
Group due to the particularized definition of "related person"
under the pre-1987 version of section 954(d)(3) of the Internal
Revenue Code, such a tax loophole is not ours to close but must
rather be closed or cured by Congress. MCA, Inc. v. United States,
685 F.2d 1099, 1104-05 (9th Cir. 1982) (refusing to expand the pre-
1987 definition of "related person" to include controlled
partnerships). Indeed, Congress has done just that. It closed
8. Section 702(b) of Subpart K provides that:
The character of any item of income . . . in a
partner's distributive share under paragraphs (1)
through (7) of subsection (a) shall be determined as if
such item were realized directly from the source from
which realized by the partnership, or incurred in the
same manner as incurred by the partnership.
26 U.S.C. § 702(b) (emphases added).
11
this loophole the following year, in 1987, when it amended section
954(d)(3) to broaden the definition of "related person" to include
not only partnerships that control CFC's but also those that are
controlled by CFC's or their parents.
Furthermore, for transactions occurring on and after December
30, 1994, Congress for the first time has apparently permitted, in
special circumstances not relevant here, the recasting of
partnership income under Subpart F. It did so by issuing Treasury
Regulation § 1.701-2 ("anti-abuse rule" permitting the IRS to
recast partnership transactions that make inappropriate use of
Subchapter K rules) and in particular § 1.701-2(e) (providing that
the IRS can treat a partnership as an aggregation of its partners
in whole or in part as appropriate to carry out the purpose of any
provision of the Code or regulations). However, because section
1.701-2 is effective only for transactions on or after May 12,
1994, and section 1.701-2(e) is effective only for transactions on
or after December 29, 1994, those provisions cannot apply to this
case. Indeed, as we read the regulations, the IRS does not have
the power to recast partnership transactions or apply the aggregate
approach for transactions occurring prior to these effective dates.
Because the "loophole" in Subpart F taxable income has been
closed, the issue that arises in the present case is unlikely to
occur again. Under the pre-1987 law applicable to the instant
case, however, the Brown Group cannot be held taxable on BCL's
12
distributive share of Brinco's partnership earnings.9
IV.
For the foregoing reasons, the Tax Court erred in attributing
taxable "Subpart F income" to the Brown Group based on BCL's
distributive share of Brinco's earnings. The decision of the Tax
Court assessing an income tax deficiency against the Brown Group
for the tax year ending November 1, 1986 is vacated.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
9. At oral argument, the IRS invoked the language of 26 U.S.C.
§ 702(b) of Subpart F of the Internal Revenue Code that states
that the character of the partner's income is determined as if
the partner directly realized that income from the source from
which the partnership realized the income. However that same
section also provides that the income "shall be determined as if
such item were . . . incurred in the same manner as incurred by
the partnership." 26 U.S.C. § 702(b). See n. 8, supra.
We do not find section 702(b) to shed much light on the
present inquiry and, in any event, we conclude that it is
unnecessary to reach or address Subpart K in resolving the
instant controversy.
13