Fifth Circuit on Rehearing Corrects on the Limited Partner Gambit to Avoid Tax (8/13/26; 8/20/26)

On 8/20/26 at 12:25 am, I substantially revised this blog entry. My additions are indicated in red; but I do not show strikeouts.

In Alain, L.L.L.P. v. Commissioner, ___ F.4th ___ (5th Cir. 8/12/26), CA5 here; GS here, the Court on panel rehearing (also denying en banc rehearing), again rejected the Tax Court and IRS interpretation of the limited partner exception to the “self-employment income” in § 1402(1)(13). Readers paying attention in the tax procedure universe are surely familiar with that issue. Basically, active service participants in a business enterprise who would have had self-employment income in straight-forward characterization of their earnings have tried to avoid that tax on self-employment income by the magic of labeling their income as a distributive share for share for limited partners.

Alain was originally decided in Sirius Solutions, L.L.L.P. v. Commissioner, 165 F.4th 374 (5th Cir. 2026), GS here, which the Court withdrew on the rehearing. The judges on the panel rendered opinions to the same effect as before. The Sirius majority opinion was nominally authored by Judge Oldham. The panel rehearing opinion is per curiam with neither of the majority judges stepping up as the author.

I critiqued the majority in Sirius Solutions in Fifth Circuit Knows a Limited Partner When Reads It (Federal Tax Procedure Blog 1/24/26; 1/20/26), here. In my original blog on Alain, I did not pay attention to the difference between the original opinion in Sirius and the revised opinion in Alain. The panel majority states its bottom-line interpretation in the opening (Slip Op. 1): 

Today, we hold its original public meaning is a partner who plays no significant role in managing or running a business.

As stated, the panel majority’s revised formulation narrows the limited partner exception it approved in its earlier opinion. The panel majority deploys the tools of interpretation that textualists so love (such as contemporary dictionaries) to determine (divine) the original public meaning to possibly include only a smaller subclass of nominal “limited partners”—specifically those limited partners who have no significant role in managing or running the business. That narrowing is at least an improvement on the earlier opinion. 

Judge Graves engages the majority on its determination of original public meaning. (Slip Op. 21-25.)

Another Bullshit Tax Shelter Goes Down; On Frank Lyon (4/17/25)

Judge Lauber nails another bullshit tax shelter in GWA, LLC v. Commissioner, T.C. Memo. 2025-34, TC here at Dkt # 357, GS here [to come] and TN here. Suffice it to say that Judge Lauber was not confused by the smoke and mirrors the taxpayer threw up on the proverbial wall. The key issue is whether the financial contract was an option contract or an ownership contract. For the tax benefits, the taxpayer wanted to treat it as an option contract, the form in which it appeared; the taxpayer argued it was an option contract that permitted deferral and ultimate favorable tax treatment; the IRS asserted it was an ownership contract not allowing such treatment. Other issues were (i) whether the treatment as an ownership contract was, under the facts, a change of accounting requiring a § 481 adjustment (it did) and (ii) whether the taxpayer was subject to penalties (it is).

I write to discuss the role of Frank Lyon Co. v. United States, 435 U.S. 561, 573 (1978) in the opinion. Frank Lyon was a disaster of an opinion, and my principal poster child as to why tax cases are too important to have the Supreme Court decide them. (That is hyperbole, of course, but not much.) In Frank Lyon, the Court, while nominally honoring the venerable tax concept of substance over form, entered a fact-intensive multi-element inquiry to bless the form of a sale-leaseback transaction with tax ownership benefits (depreciation) going to the nominal lessor (Frank Lyon). I think that most careful observers of Frank Lyon believe that Frank Lyon was incorrectly decided. E.g., Charles I. Kingson, How Tax Thinks, 27 Suffolk U. L. Rev. 1031, 1034-35 (2004). “few [tax] shelters are shoddier than those approved by the Court in Lyon and Brown [Commissioner v. Clay B. Brown, 380 U.S. 563 (1965)]”; and Bernard Wolfman, The Supreme Court in the Lyon's Den: A Failure of Judicial Process, 66 Cornell L. Rev. 1075, 1098 (1981). Still, perhaps saving the day, courts generally find enough in Frank Lyon to reject bullshit tax shelters, as Judge Lauber did in GWA, LLC v. Commissioner.

I won’t get into a back story on Frank Lyon in which I was peripherally involved at DOJ Tax. Perhaps I will write on it sometime, in order to explain why, in my judgment, the Court imprudently granted the petition for certiorari in the first place and then wrote the opinion the way it did (in my view imprudently, rather than DIG the case). Nevertheless, that should not detract from the opinion on its four corners. Since Frank Lyon, most of the bullshit tax shelter legal opinions cite and claim to rely on Frank Lyon. Most judicial opinions cite Frank Lyon in shooting down bullshit tax shelters.

On Burden of Production and Related Concepts and an Appellate War Story on Scope of Review (5/12/24)

In a recent revision to my working draft of the Federal Tax Procedure Book (with the 2024 version due in early August 2024), I added to the discussion of the Burden of Production. (The 2023.2 version of the Practitioner edition, here, has the Burden of Production discussion starting on p. 617.) As I note there, the burden of production concept is usually discussed in a jury trial setting where the party bearing the burden of persuasion will lose on motion for directed verdict without getting to the jury if there is not enough evidence on a key fact to be submitted to the jury. That is a production burden or, as some call it, the risk of nonproduction. This burden is addressed to the function of the judge rather than the jury.

In a recent article, I noted that “The burden of production could also come into play on a motion for summary judgment, motion for j.n.o.v., or even on appeal when the trial judge or appellate judges determine that the evidence was of such quality that a reasonable juror could not make a determination.” John A. Townsend, Burden of Proof in Tax Cases: Valuation and Ranges—An Update, 73 Tax Lawyer 389, 402 n. 42 & 404 n. 49 (2020). I decided to add that thought to the Burden of Production discussion in the working draft of the Federal Tax Procedure Book so that it will appear in the 2024 edition.

As I now have it in the working draft, the added paragraph is (footnote omitted):

          The burden of production is discussed above in its traditional jury-trial setting where it would be invoked in a motion for directed verdict. There is an analog in motions for summary judgment, motion for judgment notwithstanding verdict (j.n.o.v.), and appeals. In each of those settings, a proponent may succeed if the record has unrebutted persuasive evidence that a reasonable jury could not find for the opponent. In other words, the opponent on a motion for summary judgment has a burden of production (or risk of nonproduction) equivalent to show evidence that a reasonable jury could find for the opponent.

I thought I would elaborate in this blog by reference to a recent tax opinion. In Meyer, Borgman & Johnson, Inc. v. Commissioner, 100 F.4th 986 (8th Cir. 5/6/24), CA8 here and GS here, the Court affirmed the Tax Court’s grant of summary judgment holding that the taxpayer did not qualify for § 41’s credit for qualified research expenses” because the expenses were “funded” by another party (rather than at taxpayer risk) within the meaning of § 41(d)(4)(H). I will not go further into the law; the opinion is very short, so I encourage those interested to read it.

Obviously, in granting summary judgment, the Tax Court had to make findings of fact and conclusions of law. Under my analysis above, the taxpayer bearing the burden of persuasion and thus the burden of production on summary judgment had to show that there were sufficient facts under the law to warrant the Court denying the summary judgment. In other words, in the face of an otherwise appropriate IRS motion for summary judgment, the taxpayer had to ensure that the facts on the motion for summary judgment were of sufficient quality to make the issue a triable issue. In the jury analog, the facts would have to be sufficient to get the issue to the jury if the facts were as presented in the motion for summary judgment.

I focus on the Court’s statement in Meyer, Borgman & Johnson, Inc. of the standard of review on appeal, because it seems to be less than precise about what it was doing in the context of reviewing the grant of a motion for summary judgment. I quote the relevant portion of the opinion (Slip Op. 2, cleaned up to strip out case citations and quotes to get to the reasoning and bold-face supplied by JAT):

On summary judgment, the Tax Court ruled that MBJ’s research was “funded” within the meaning of 26 U.S.C. § 41(d)(4)(H), meaning that MBJ did not qualify for the credits. This court reviews de novo a grant of summary judgment. Summary Judgment pursuant to Tax Court Rule 121 is derived from Rule 56 of the Federal Rules of Civil Procedure and is interpreted consistently with interpretations of Rule 56. Contract interpretation and the propriety of summary judgment are legal issues we review de novo.

This court reviews de novo the Tax Court’s legal conclusions; findings of fact are upheld unless clearly erroneous. An income tax deduction is a matter of legislative grace and* the burden of clearly showing the right to the claimed deduction is on the taxpayer.

Tax Court Dissects Complex Acquisition Transaction With Senior and Subordinated Debt Characterization in Issue (10/27/21)

In Tribune Media Co. v. Commissioner, T.C. Memo. 2021-122, here, issued yesterday, the Tax Court addressed a complex acquisition of the Chicago Cubs and held (in a 127 page opinion), that

• Certain debt (subordinated debt (called “sub debt”)) was equity rather than debt for tax purposes (slip op. 56-90.)  The result of holding the sub debt to be equity was that, under the partnership disguised sale rules, gain was recognized to the extent of the sub debt.  Specifically, and more precisely, since the parties agreed that the partnership disguised sale rules applied, the Court held that the treatment of the sub debt as equity meant that the exception for debt-financed distributions did not apply to that debt.  (This aspect of the transaction planning had been designed to qualify as debt-financed distributions.)  This holding turned upon the debt-equity distinction familiar to tax practitioners and even students of tax law.  The Court held (Slip op. 90) that “Although the sub debt had the superficial appearance of bona fide debt, it more closely resembles equity.”

• The senior debt in the transaction was bona fide recourse debt that could be allocated to support the debt-financed distribution exception to the disguised sale rules.  (Slip op. 91-119.)  With respect to the senior debt (slip op. pp. 118-119) the Court concluded (Slip op. 118-119, footnote omitted):

The Cubs transaction was a disguised sale in both form and substance. The economic reality of this transaction lies squarely within the intent of the disguised sale statute. The parties to the transaction formed a bona fide partnership that operates the Cubs franchise with assets contributed by Tribune. And the partnership in fact distributed cash to Tribune. This transaction also substantively fits into the debt-financed distribution exception for a disguised sale, receiving the distribution tax free up to the amount of the senior debt guaranteed by Tribune. CBH borrowed the senior debt, and Tribune guaranteed the senior debt. When such a transaction is explicitly provided for by Congress and followed by a taxpayer in both substance and form, we will not recharacterize it.The doctrine of substance over form is applied to prevent taxpayers from mislabeling transactions to achieve a desired tax consequence. Petitioners did not mislabel the transaction here; the economic substance of the Cubs transaction is a disguised sale with a debt-financed distribution, a structure contemplated by both the statute and the regulations.