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In an August 1, 2008 statement, DOJ Deputy Assistant Attorney General John DiCicco comments on a Claims Court ruling that denied deductions and imposed a 40% penalty on a family that sold stock in their business and used a portion of the proceeds to purchase a "Son of BOSS" digital foreign currency tax shelter in an effort to avoid $40 million in capital gains taxes. Under the topic of food for thought, although this case included no charitable component, we wonder if the tax(and penalty)payers' advisors ever presented a charitable remainder trust or other philanthropic planning vehicle for their clients' consideration?

Citation: 08-679

Full Text:

STATEMENT OF DEPUTY ASSISTANT ATTORNEY GENERAL JOHN A. DICICCO
ON THE DECISION IN STOBIE CREEK INVESTMENTS, LLC v. UNITED STATES

WASHINGTON -- The U.S. Court of Federal Claims has ruled in favor of the United States in a case involving one family's attempt to avoid taxes on $204 million in gain realized on the sale of their business, the Justice Department announced today. When members of the Welles family sold stock in Toledo-based Therma Tru Corporation in 2000, they paid $8 million to three tax shelter promoters for a "Son of BOSS" tax shelter involving digital foreign currency options in an effort to avoid $40 million in taxes.

The court ruled that the taxpayers owe not only the taxes, but also a 40% penalty. In a 128-page opinion, Judge Christine Odell Cook Miller found that the underlying transactions completely lacked economic substance. The court concluded that no reasonable chance existed for the Welles family members to earn a profit on the underlying "investments" in foreign currency options. Instead, Judge Miller ruled that the transactions were designed solely to generate tax benefits. As such, they could not be recognized for tax purposes.

In finding the taxpayers liable for substantial penalties, Judge Miller stated that it was unreasonable to rely upon tax opinion letters written by the same attorneys who had designed and carried out the tax shelter. These attorneys, the court noted, also charged the Welleses for the opinions as a percentage of the taxes that they were trying to save through the tax shelter. The court added that it was not reasonable to rely on the opinion letters because the factual representations on which the legal opinions were based were "demonstrably false, a fact that could not have been doubted by any sentient person involved." The court refused to sanction what it called a "bury your head in the sand" approach.

"We are pleased that yet another court has delved into the workings of this manufactured tax shelter and found it deficient," said John DiCicco, Deputy Assistant Attorney General of the Justice Department's Tax Division. "We hope that other taxpayers who seek to defend this patently abusive shelter will heed this decision and abandon their efforts to defend the indefensible. For our part, the Department of Justice will redouble its efforts to expose and defeat these blatant attempts to raid the Treasury."

Deputy Assistant Attorney General DiCicco thanked Tax Division attorneys Stuart D. Gibson, Corey A. Johnson and Jacob E. Christensen, who tried the case.