An appropriate order will be issued.
Ps exchanged property for ostensibly restricted stock of a
newly formed S corporation (S). The governing agreements provided that Ps, upon termination of employment, would receive less than the full fair market value of their S shares only if they were terminated "for cause" during the initial term of the employment agreement. Section 7(B) of the employment agreement defined termination "for cause" to include termination upon "[f]ailure or refusal by Employee * * * to cure by faithfully and diligently performing the usual and customary duties of his employment."
1.
2.
141 T.C. 551">*552 LAUBER,
The following facts are not in dispute. Larry Austin and Arthur Kechijian (petitioners) resided in North Carolina when they filed petitions.22013 U.S. Tax Ct. LEXIS 38">*41 Belinda Austin and Susan Kechijian are parties to these cases solely by virtue of having filed joint Federal income tax returns with their husbands for the tax years at issue.
Petitioners worked together for more than 15 years in the "distressed debt loan portfolio business." Before 1998 petitioners were the original shareholders and members of a group of related companies called "the UMLIC Entities." In December 1998 petitioners formed, and elected subchapter S status for, UMLIC Consolidated, Inc., a North Carolina corporation (UMLIC S-Corp.). In a section 351 transaction, each petitioner transferred his unrestricted ownership interest in the UMLIC Entities to UMLIC S-Corp. in exchange for 47,500 shares of its common stock. Concurrently, UMLIC S-Corp. issued 5,000 shares of its common stock, in exchange for a note, to an employee stock ownership plan (ESOP) for its employees, including petitioners. Thus, as of December 7, 1998, each petitioner owned 47.5% of UMLIC S-Corp., and the ESOP owned 5%. At all relevant times, petitioners were the only directors on the UMLIC S-Corp. board of directors. Petitioners, along with the company's assistant controller, were the initial trustees of the ESOP.
Petitioner Kechijian was employed as the president of UMLIC S-Corp. He had responsibility for general operations and for servicing loan 2013 U.S. Tax Ct. LEXIS 38">*42 portfolios, including workout strategies, 141 T.C. 551">*554 loan sales, foreclosures, and loan modifications. Petitioner Austin was employed as senior executive vice president of UMLIC S-Corp. He had responsibility for loan portfolio acquisitions, including due diligence involved in the evaluation of loan portfolios, foreclosure gain/loss analysis, expected cashflows, bidding strategies, and investor relationships.
As part of the section 351 exchange, each petitioner executed with UMLIC S-Corp. substantially identical agreements denominated "Restricted Stock Agreement" (RSA) and "Employment Agreement." These agreements were explicitly linked. Section 12 of the employment agreement stated that the employee's ownership of UMLIC S-Corp. shares "shall be governed by * * * [the RSA] entered into simultaneously * * * [and] incorporated herein by reference."
The stated purpose of these agreements was to incentivize petitioners to exchange their UMLIC interests for UMLIC S-Corp. stock and require them to perform future services in order to secure full rights in this stock. The RSA stated the company's intention "to induce * * * [each petitioner's] continued employment on behalf of * * * [UMLIC S-Corp.] * * * 2013 U.S. Tax Ct. LEXIS 38">*43 by providing certain financial incentives under this Agreement." Conversely, each petitioner agreed that, in consideration of UMLIC S-Corp.'s issuance of shares to him, he was "willing to perform future services on behalf of * * * [UMLIC S-Corp.] under the terms of the Employment Agreement."
The shares issued to petitioners bore the following legend: "The shares represented by this certificate, and the transfer hereof, are subject to the terms of * * * [the RSA]." The RSA permitted limited transfer of the shares to or for the benefit of family members. However, transfer was permitted only if the transferee agreed to be bound by the RSA and hence by any restrictions on full enjoyment of the stock to which the RSA subjected petitioners.
Section 4 of the employment agreement provided that "[t]he initial term of this Agreement shall commence on December 7, 1998 * * * and shall continue until January 1, 2004." Section 1 of the Agreement, captioned "Employment," provided: 141 T.C. 551">*555 During the term of this Agreement * * * [employee] will devote all of his efforts to the performance of his duties as * * * [an officer of UMLIC S-Corp.] and any other duties and responsibilities the Board of Directors * * 2013 U.S. Tax Ct. LEXIS 38">*44 * may assign to him from time to time. Employee agrees to perform such duties and responsibilities faithfully, diligently and in a timely manner and to abide by all * * * [UMLIC S-Corp.] policies relating to its employees generally.
Section 7 of the employment agreement, captioned "Termination," provided that "[t]his Agreement may be terminated by * * * [UMLIC S-Corp.] at any time for cause." The Agreement makes no provision for termination by the employee, and it makes no provision for termination by the employer on grounds other than "for cause." For purposes of the Agreement, "cause" was defined to "include, without limitation," the following three categories of employee action: A. Dishonesty, fraud, embezzlement, alcohol or substance abuse, gross negligence or other similar conduct on the part of the Employee. Upon termination of this Agreement, Employee shall be entitled to receive compensation through the date of termination. B. Failure or refusal by Employee, after 15 days written notice to Employee, to cure by faithfully and diligently performing the usual and customary duties of his employment and adhere to the provisions of this Agreement. C. Failure or refusal by Employee, after 2013 U.S. Tax Ct. LEXIS 38">*45 15 days written notice to Employee, to cure by complying with the reasonable policies, standards and regulations applicable to employees which * * * [UMLIC S-Corp.] may establish from time to time.
Section 4 of the RSA, captioned "Termination of Employment," governed the consequences "[i]n the event of termination, voluntary or otherwise," of the employee's employment with UMLIC S-Corp. Section 4 addressed two types of termination: "termination without cause" and "termination with cause." If the employee's employment was terminated "without cause, as defined in Section 7 of the Employment Agreement,"3 he would be deemed by RSA section 4(b) to have offered to sell all of his stock to the company pursuant to RSA section 5(b). The latter provided that, if employment terminated after December 31, 2003--that is, following the end of the initial term of the employment agreement--and the employee was not in material breach of either agreement, 141 T.C. 551">*556 he would receive 100% of the fair market value of his stock, as determined by formula. Regardless of his actual termination date, in other words, an employee discharged "without cause" would be treated as if he had terminated employment after December 2013 U.S. Tax Ct. LEXIS 38">*46 31, 2003, and he would receive the full value of his shares.
If the employee's employment was terminated by UMLIC S-Corp. "with cause, as defined in Section 7 of the Employment Agreement," the employee would likewise be deemed to have offered to sell all of his stock to the company under RSA sec. 4(a). However, the purchase price would then depend on the date of the termination. If the employee was terminated for cause after December 31, 2003, he would receive 100% of the fair market value of his stock under RSA section 5(b). If the employee was terminated for cause before January 1, 2004, the purchase price would be governed by RSA section 5(a). It provided that, if employment terminated before January 1, 2004--that is, during the initial term of the employment agreement--the employee would receive at most 50% of the fair market value of his stock, with the possibility of receiving nothing, as determined by formula.
For purposes of filing their individual income tax returns for 2000-2003, petitioners took the position that their UMLIC S-Corp. stock 2013 U.S. Tax Ct. LEXIS 38">*47 was subject to a "substantial risk of forfeiture" and was thus "substantially nonvested" within the meaning of
The Internal Revenue Service 2013 U.S. Tax Ct. LEXIS 38">*48 (IRS or respondent) issued to petitioners timely notices of deficiency that challenged, on a variety of grounds, the tax structure that petitioners and UMLIC S-Corp. had implemented. In this Opinion, we address only one of the theories the IRS has advanced--namely, that petitioners' stock when issued to them was "substantially vested" by virtue of
Summary judgment is intended to expedite litigation and avoid unnecessary and expensive trials.
The 2013 U.S. Tax Ct. LEXIS 38">*49 parties agree that there are no disputes of material fact affecting the question addressed in this Opinion--namely, whether
The RSA provides that each petitioner, upon termination of employment, will be deemed to have offered to sell his stock to UMLIC S-Corp. at the "purchase price" specified in section 141 T.C. 551">*558 5. Section 5(b), wherever it applies, specifies that the employee will receive 100% of the fair market value of his stock, deterimned by formula.
That being so, the only provision 2013 U.S. Tax Ct. LEXIS 38">*50 of the RSA that could create a substantial risk of forfeiture is section 5(a), under which the employee will receive at most 50% of the fair market value of his stock. Section 5(a) comes into play upon "termination of * * * employment." This subject is governed, apparently comprehensively, by section 4 of the RSA, captioned "Termination of Employment," which applies "[i]n the event of termination, voluntary or otherwise." The only situation in which section 4 triggers the 50% discount mandated by section 5(a) is a termination "with cause" occurring before January 1, 2004. Under the regulations, a requirement that stock be forfeited "if the employee is discharged for cause * * * will not be considered to result in a substantial risk of forfeiture."
Petitioners contend that the scope of "for cause," as used in
For purposes of
The requirement that an employee perform future services as a condition of obtaining full enjoyment of restricted property is sometimes called an "earnout" restriction. On November 1, 1971, corporation X transfers in connection with the performance of services 2013 U.S. Tax Ct. LEXIS 38">*54 to E, an employee, 100 shares of corporation X stock for $90 per share. Under the terms of the transfer, E will be subject to a binding commitment to resell the stock to corporation X at $90 per share if he leaves the employment of corporation X for any reason prior to the expiration of a 2-year period from the date of such transfer. Since E must perform substantial services for corporation X and will not be paid more than $90 for the stock, regardless of its value, if he fails to perform such services during such 2-year period, E's rights in the stock are subject to a substantial risk of forfeiture during such period.
Where an employee receives property from an employer subject to a requirement that it be returned if the total earnings of the employer do not increase, such property is subject to a substantial risk of forfeiture. On the other hand, requirements that the property be returned to the employer if the employee is discharged for cause or for committing 2013 U.S. Tax Ct. LEXIS 38">*55 a crime will not be considered to result in a substantial risk of forfeiture. * * *
Read in isolation, the term "for cause" is susceptible to a broad construction. In the employment law context, "for cause" expresses "a common standard governing the removal of a civil servant or an employee under contract." Black's Law Dictionary 717 (9th ed. 2009). Generally, "[a]n employer has cause for early termination of an agreement for a definite term of employment if the employee has engaged in misconduct, other malfeasance, or other material breach of the agreement, such as persistent neglect of duties, gross negligence, or failure to perform the duties of the position due to a permanent disability." Restatement, Employment 3d, Tentative Draft No. 2, sec. 2.04 (2009). According to the Restatement, the parties to an employment agreement are free to define the term "for cause" as they believe appropriate to the particular employment setting.
The history of a regulation may be helpful in resolving ambiguities in it.
When issuing these regulations in proposed form, the Secretary stated that "[p]rior to the final adoption of such regulations, consideration will be given to any comments or suggestions pertaining thereto."
After the public comments were received, but before any final regulations were issued, this Court decided two cases that addressed the meaning of "substantial risk of forfeiture" under section 83. In
In
The following year, the Department of 2013 U.S. Tax Ct. LEXIS 38">*59 the Treasury issued the
When issuing the final regulations, the Department of the Treasury explained the principal changes it had made to the proposed regulations.
Because the term "for 2013 U.S. Tax Ct. LEXIS 38">*60 cause" as used in
The text and evolution of
We may never know for certain what prompted the Department of the Treasury, in the 1978 final regulations, to revise this exception to read "discharged for cause or for committing a crime." However, a fair inference is that this revision was implemented to codify the results in
This history of It is respondent's position that the phrase "for cause or for committing a crime" was intended to capture risks that are too remote to be considered a substantial risk of forfeiture. Respondent further contends that the addition of the "for cause" provision was intended to clarify that contingencies resulting in an involuntary termination that are too remote to be considered substantial risks go beyond terminations for committing a crime, and include other conduct that results in a termination, but that is very unlikely to occur.
Section 14 of the employment agreement provides that it "shall be construed in accordance with and governed by the internal law * * * of the State of North Carolina." In interpreting a contract under North Carolina law, the intention of the parties generally controls.
We review the employment agreement and the RSA as an integrated whole. Petitioners were the key contributors to their distressed debt loan portfolio business before the UMLIC Entities were consolidated into UMLIC S-Corp. The stated purpose of these agreements was to "provid[e] certain financial incentives" to induce petitioners to continue their employment with the consolidated company for an initial term of four 2013 U.S. Tax Ct. LEXIS 38">*67 years. As a condition of receiving the UMLIC S-Corp. stock, petitioners affirmed that they were "willing to perform future services" on behalf of the company. Section 1 of the employment agreement required each petitioner to "devote all of his efforts to the performance of his duties" for UMLIC S-Corp. for the four-year term of the Agreement and to perform such duties "faithfully, diligently and in a timely manner." These provisions are most naturally read to express the parties' intention that petitioners were required to perform substantial future services for UMLIC S-Corp. in exchange for their stock.
The termination provisions of the employment agreement and the RSA must be evaluated in the light of the parties' expressed intention and the construction of the regulation that we have adopted above. Applying these parameters, and looking only within the four corners of the agreements, we believe that termination for activity specified in section 7(A) of the employment agreement--e.g., for "[d]ishonesty, fraud, embezzlement, alcohol or substance abuse"--is reasonably characterized as a discharge "for cause" within the meaning of
Section 7(B) permits termination for "[f]ailure or refusal by Employee, after 15 days written notice to Employee, to cure by faithfully and diligently performing the usual and customary duties of his employment." The conditions stated in this section are the conditions that commonly lead employers 141 T.C. 551">*567 throughout our economy to terminate at-will employees--namely, unsatisfactory job performance. This is not a "remote" category of event that is unlikely to occur.
More specifically, under the peculiar drafting of these instruments, section 7(B) appears to constitute, in conjunction with RSA section 5(a), a classic "earnout restriction." The employment agreement states that it can be terminated only by UMLIC S-Corp. and only for reasons denominated "for cause." Given proscriptions against involuntary servitude, there must be some way that petitioners could voluntarily cease working for that company. Section 7(B) seems to be the mechanism that the drafters intended to cover this situation.
If one of 2013 U.S. Tax Ct. LEXIS 38">*69 petitioners announced his intention to leave his employment before January 1, 2004, section 7(B) contemplates that UMLIC S-Corp. would issue him a "notice to cure." He would then have 15 days to cure "by faithfully and diligently performing the usual and customary duties of his employment and adhere to the provisions of this Agreement." This language tracks section 1 of the employment agreement, wherein each petitioner agreed, during the four-year term of that Agreement, "to perform * * *[his] duties and responsibilities faithfully, diligently and in a timely manner and to abide by all * * * [UMLIC S-Corp.] policies relating to its employees generally." What petitioner would have to "cure," in other words, was his refusal to continue performing the duties specified in the employment agreement, which he had pledged diligently to discharge for four years. If petitioner did not cure this breach within 15 days, UMLIC S-Corp. was entitled under section 7(B) to terminate the employment agreement "for cause."72013 U.S. Tax Ct. LEXIS 38">*70
In short, section 7(B) of the employment agreement appears to be the linchpin of the mechanism by which petitioners would receive less than full fair market value upon forfeiture of their stock if they did not continue to perform substantial services for UMLIC S-Corp. for the four-year initial term of that agreement. As a general rule, "[t]he rights 141 T.C. 551">*568 of a person in property are subject to a substantial risk of forfeiture if such person's rights to full enjoyment of such property are conditioned upon the future performance of substantial services by any individual."
We thus conclude that RSA section 5(a) in conjunction with section 7(B) of the employment agreement--however inartfully drafted--constitutes an earnout restriction that may give rise to a "substantial risk of forfeiture" 2013 U.S. Tax Ct. LEXIS 38">*71 under
For these reasons, we will deny respondent's motion for partial summary judgment, which is based solely on the theory that
1. Unless otherwise indicated, all statutory references are to the Internal Revenue Code (Code) in effect for the tax years 2000, 2001, 2002, 2003 and 2004, and all Rule references are to the Tax Court Rules of Practice and Procedure.↩
2. Petitioner Arthur E. Kechijian died while the summary judgment motions were pending. On October 24, 2013, we substituted his estate as a party petitioner. His estate is being probated in North Carolina.
3. In fact, section 7 of the employment agreement does not define termination "without cause," and those words do not appear in that section.↩
4. A holder of restricted S corporation stock may elect to be treated as a shareholder,
5. Because petitioners received their UMLIC-S Corp. shares in a section 351 exchange, they were relieved of any obligation to recognize gain upon receipt of the shares. The relevance of determining whether the shares were "substantially vested" upon receipt is that this determination controls whether petitioners' shares are treated during 2000-2003 as "outstanding stock of the corporation,"
6. The canon of construction "noscitur a sociis"--a Latin phrase meaning "it is known by its associates"--supports the construction set forth in the text. This canon of construction "hold[s] that the meaning of an unclear word or phrase should be determined by the words immediately surrounding it." Black's Law Dictionary 1160-1161 (9th ed. 2009). While this canon does not set forth an inescapable rule, it is often wisely applied to avoid giving unintended breadth to a word susceptible to multiple meanings.
7. Technically speaking, by acting under section 7(B), UMLIC S-Corp. would not be terminating