Michael Tricarichi v. Cir ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 13 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL A. TRICARICHI, Transferee, No. 16-73418
Petitioner-Appellant, Tax Ct. No. 23630-12
v.
MEMORANDUM*
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
Appeal from a Decision of the
United States Tax Court
Argued and Submitted February 7, 2018
Pasadena, California
Before: W. FLETCHER, BEA,** and OWENS, Circuit Judges.
Taxpayer Michael A. Tricarichi appeals from the tax court’s decision on his
petition challenging a notice of transferee liability regarding West Side Cellular,
Inc.’s (“West Side”) unpaid taxes. Specifically, Tricarichi challenges the tax
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
Judge Bea was drawn to replace Judge Reinhardt on the panel
following his death. Ninth Circuit General Order 3.2h. Judge Bea has read the
briefs, reviewed the record, and listened to oral argument.
court’s conclusion that he is liable for West Side’s unpaid taxes under 26 U.S.C.
§ 6901 and the Ohio Uniform Fraudulent Transfer Act (“UFTA”).1 We have
jurisdiction under 26 U.S.C. § 7482. We review the tax court’s conclusions of law
de novo and its factual findings for clear error. Hongsermeier v. Comm’r, 621
F.3d 890, 899 (9th Cir. 2010). As the parties are familiar with the facts, we do not
recount them here. We affirm.
Contrary to Tricarichi’s contentions, the tax court did not clearly err in its
factual findings regarding the structure and timing of the stock sale. See Shea
Homes, Inc. & Subsidiaries v. Comm’r, 834 F.3d 1061, 1067 (9th Cir. 2016)
(stating that when reviewing the tax court’s underlying factual determinations for
clear error, this court may reverse only if it finds that “the [t]ax [c]ourt’s
conclusion was ‘(1) illogical, (2) implausible, or (3) without support in inferences
that may be drawn from the facts in the record” (citation omitted)). There is
sufficient support in the record for the tax court’s characterization of the
transaction.
The tax court properly held that Tricarichi is liable for West Side’s unpaid
taxes under § 6901 and the Ohio UFTA. See Slone v. Comm’r, 810 F.3d 599, 604
(9th Cir. 2015) (Slone I) (setting forth two-pronged Stern test). Under the state-law
1
We resolve Tricarichi’s challenge to the tax court’s conclusion that Tricarichi is
also liable for the “pre-notice interest” component of West Side’s tax liability in a
concurrently filed opinion.
2
prong, the tax court properly determined that West Side’s cash was “transferred” to
Tricarichi under the Ohio UFTA. See Ohio Rev. Code Ann. § 1336.01(L)
(defining “transfer” as “every direct or indirect . . . method of disposing of or
parting with an asset”). And, under the federal-law prong, the tax court properly
determined, looking through the form of the stock sale to consider its substance,
that it lacked a non-tax business purpose or any economic substance other than the
creation of tax benefits. See Slone I, 810 F.3d at 605-06; see also Slone v.
Comm’r, 896 F.3d 1083, 1086 (9th Cir. 2018) (Slone II).
AFFIRMED.
3