All too often a person cheating others ends up pitting the defrauded individuals against the IRS in a battle over the remaining assets of the cheater. The most recent version of this longstanding problem exists now in the Ninth Circuit case of Wadsworth v. Talmage, 123 AFTR 2d 2019-305 (911 F.3d 994), (9th Cir. 2018) (order certifying question to the Supreme Court of Oregon). On December 27, 2018, the Ninth Circuit declined to sustain the dismissal of the action by the district court and certified the issue of the meaning of a constructive trust in Oregon to the Oregon Supreme Court. Presumably, the Oregon Supreme Court’s decision on the application of constructive trusts in that state will allow the Ninth Circuit to reach a decision on whether property existed to which the federal tax lien could attach.
These types of cases put the IRS in the awkward position of taking the assets of the thief to satisfy outstanding tax debts resulting from the theft. By taking those assets, the IRS prevents the actual victims of the theft from receiving restitution. I am always pulling for the victims in these cases because it does not seem right to me that the tax authority should take the money instead of the actual victims of the theft. I have written about these types of situations previously in the bankruptcy context, here and here, in circumstances in which the issue was whether the court could order a clawback of the money from the IRS.
The Ninth Circuit describes the basic facts regarding the use of the money fraudulently obtained from investors:
John Wadsworth and other members of the RBT Victim Recovery Trust (collectively, “the Trust”) allege that Ronald Talmage, an investment manager, began fraudulently diverting his clients’ funds in the 1990s as part of a Ponzi scheme. Members of the Trust entrusted Talmage with “over $55 million” between 2002 and 2015.
In 1997, Talmage and his first wife purchased RiverCliff for almost $1 million. The property was purchased with the proceeds of Talmage’s Ponzi scheme. From 1998 to 2008, Talmage spent over $12.5 million of entirely stolen funds to improve the property. Talmage paid his first wife $1.5 million dollars in 2005 using money “stolen . . . from . . . Trust beneficiaries” to purchase her half-interest in RiverCliff after the couple divorced. Throughout this time, Talmage resided at RiverCliff.
Unlike the debtors in the bankruptcy cases linked above in which the issue was a clawback of money paid to the IRS, here the perpetrator of the scheme also failed to pay his taxes. Because he failed to pay his federal taxes, the IRS filed a notice of federal tax lien. The lien attached to RiverCliff and all of the property owned by Mr. Talmage. The IRS brought suit to foreclose its lien on the property. The Recovery Trust sought to intervene in that action and was denied. The Recovery Trust then brought this action seeking to quiet title to the property. At the district court level the IRS succeeded in having the suit dismissed. The referral to the Oregon Supreme Court comes because the Ninth Circuit sees the possibility that under Oregon law the Recovery Trust may have a superior property interest to the lien of the IRS.
Although the priority of the federal tax lien is determined under federal law, whether the taxpayer has a property interest to which the lien can attach is a question of state law. Looking at Oregon law, the Ninth Circuit found that opinions existed supporting both the majority and minority views of constructive trust:
The rights of the legal title-holder, and of lienors such as the Government, depend on when the constructive trust arises. Under the laws of the several states, a constructive trust can arise either at the moment a purchase is made with the fraudulently-obtained funds, or at the moment a court imposes the trust as an equitable remedy. Under the majority rule, a trust arises automatically at the moment of purchase. See In re Leitner, 236 B.R. 420, 424 (Bankr. D. Kan. 1999) (“[U]nder the majority state law rule, a constructive trust arises at the time of the occurrence of the events giving rise to the duty to reconvey the property, not at the date of final judgment declaring the trust . . .”); see also RESTATEMENT (THIRD) OF RESTITUTION AND UNJUST ENRICHMENT § 55 cmt. e (2011). In states following this rule, the legal title-holder is a constructive trustee who holds no rights beyond bare legal title. For purposes of the federal tax lien statute, 26 U.S.C. §6321, property held in a constructive trustee-taxpayer’s name therefore does not “belong” to the taxpayer, and tax liens cannot attach. See, e.g., FTC v. Crittenden, 823 F. Supp. 699, 704 (C.D. Cal. 1993) (finding that an “IRS lien does not attach” to business funds that are subject to a constructive trust under California law); Mervis Indus., Inc. v. Sams, 866 F. Supp. 1143, 1147 (S.D. Ind. 1994) (finding tax liens could not attach to property whose title is held by an embezzler because Indiana law “is clear” that “an embezzler, from the beginning, acquires no beneficial ownership in property purchased with stolen funds”).
Under the minority rule, a constructive trust arises only once it is imposed as a judicial remedy. In that case, the legal title-holder retains all the rights of a property owner until such a remedy is imposed by a court. Until that time, the property “belongs” to the title-holder for purposes of 26 U.S.C. § 6321 and federal tax liens against the title-holder can attach. If no court has imposed a trust when the tax liens attach, the beneficiaries of a potential constructive trust hold at most an inchoate claim to the property. For example, in Blachy v. Butcher, 221 F.3d 896, 905 (6th Cir. 2000) (quoting Soo Sand & Gravel Co. v. M. Sullivan Dredging Co., 244 N.W. 138, 140 (Mich. 1932)), the Sixth Circuit found that “[u]nder Michigan law, a ‘constructive trust is strictly not a trust at all, but merely a remedy administered in certain fraudulent breaches of trusts.’” Because “a constructive trust does not arise until a judicial decision imposes such a trust under Michigan law,” beneficiaries of the trust alleged in that case held only an inchoate state-created lien, over which an attached federal tax lien takes priority. Id.
Because state law controls a critical question concerning the competition between the parties due to the issue of what property interest in the taxpayer held, the Ninth Circuit correctly certified the question to the Oregon Supreme Court. The specifics of Oregon law may impact few readers but the issue of constructive trust and the ways that states have construed ownership in these situations has broad application. The lawyers for the trust have done a great job of keeping the case going in the face of significant adversity after being rebuffed in their effort to intervene and being dismissed in the quiet title action. They have one more hurdle to leap before the defrauded investors (and probably the lawyers themselves) have a chance at using the value of the property purchased by Talmage to satisfy their claims.