American Electric Power Co. v. United States

191 F.R.D. 132, 85 A.F.T.R.2d (RIA) 345, 1999 U.S. Dist. LEXIS 20289, 1999 WL 1398779
CourtDistrict Court, S.D. Ohio
DecidedDecember 17, 1999
DocketNo. Civ.A. C-2-99-724
StatusPublished
Cited by60 cases

This text of 191 F.R.D. 132 (American Electric Power Co. v. United States) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Electric Power Co. v. United States, 191 F.R.D. 132, 85 A.F.T.R.2d (RIA) 345, 1999 U.S. Dist. LEXIS 20289, 1999 WL 1398779 (S.D. Ohio 1999).

Opinion

ORDER

ABEL, United States Magistrate Judge.

American Electric Power, Inc. and its subsidiaries (“AEP”) bring this action under 28 U.S.C. § 1346(a)(1) and 26 U.S.C. § 7422 against the United States of America (“Government”) to recover federal income tax overpayments. AEP alleges that it is entitled to claim a deduction for interest on accrued loans secured by corporate-owned life insurance (“COLI”) policies. AEP is seeking a refund of more than $300 million in corporate income taxes and interest'.

This matter is before the Magistrate Judge on the Government’s May 10,1999 motion to compel the Newport Group (“Newport”) to comply with a subpoena duces tecum issued by the Government on January 20,1999 (doc. 2) and AEP’s October 1, 1999 motion for leave to file a response to the Government’s reply memorandum (doc. 26). The subpoena at issue contained eleven requests for documents. The Government and Newport have reached an agreement with regard to most of the document requests, but Newport objects to Request Nos. 6, 7, and 8 on the grounds that they call for the production of documents irrelevant to the issues in this action and that they are unlikely to lead to the [134]*134discovery of relevant evidence. In addition, Newport has provided the Government documents responsive to Request No. 2, but it has redacted the name and identifying information of the client referenced in the documents.

The Government contends that Request Nos. 6, 7, and 8 ask for documents that are relevant to the issue of whether the COLI policy loans made to AEP had economic substance. With regard to Request No. 2, the Government argues that the client’s identity is not privileged or beyond the scope of discovery and that the client’s identity would be adequately protected by the confidentiality agreement that Newport and the Government have executed. The Government also argues that Newport waived its objections to the- subpoena because it failed to serve written objections within 14 days after service of the subpoena. For the reasons that follow, both motions are granted.

I. Facts

The complaint alleges that AEP is entitled to claim a deduction for interest on accrued loans secured by corporate-owned life insurance (“COLI”) policies. COLI is a type of life insurance purchased by companies on the lives of their employees. Unlike traditional life insurance, the company, not the employee, owns the policy and receives the proceeds from the policy when the insured employee dies.

In 1990, AEP purchased COLI policies on the lives of approximately 20,848 of its employees. The COLI policies were issued by Mutual Benefit Life Insurance Company (“Mutual Benefit”), and Mutual Benefit rein-sured these policies with Hartford Life Insurance Company (“Hartford Life”). AEP’s total annual COLI premiums were approximately $345 million. A portion of these premiums were paid with cash, but most of the premiums were paid through various financing mechanisms built into the policies, such as designated policy loans, policyholder dividends, and withdrawals of policy value.

AEP claimed deductions for the interest charges on the policy loans on its federal corporate income tax returns for taxable years 1990 through 1996. In an audit of AEP’s income tax returns, the Internal Revenue Service (“IRS”) disallowed the COLI policy loan deductions. The IRS determined that the interest charges claimed by AEP did not represent “interest paid or accrued ... on indebtedness” within the meaning of § 163(a) of the Internal Revenue Code. In other words, the IRS concluded that the policy loans did not reflect actual indebtedness from AEP to the insurance carriers (Mutual Benefit and Hartford Life) and that the amounts denominated as “interest” did not constitute compensation for the forbearance of money. Rather, the IRS found that the policy loans, interest payments, and other aspects of AEP’s COLI policies were “paper transactions” devoid of economic substance aside from the tax savings they were designed to generate. After paying the taxes due once the interest deductions were disallowed, AEP proceeded to file this action.1

Newport, a non-party to this action, is a Florida corporation having its offices and principal place of business in Heathrow, Florida. It is engaged in the business of designing and implementing insurance programs and brokering insurance plans, both for corporate clients and individuals. It also administers the insurance plans after the plans are purchased. Newport was the agent on the sales of the COLI policies at issue. Newport received commissions from Mutual Benefit for its efforts in placing insurance policies with AEP and other companies, and it received fees from AEP and other companies for administering their plans.

According to Newport, it has received four discovery subpoenas from the Government and thirteen IRS information document requests relating to AEP and C.M. Holdings, Inc. (“Camelot”). Also, during the last three years, Newport has responded to approximately 110 IRS document requests seeking over 100,000 documents relating to approxi[135]*135mately thirty other clients who purchased COLI policies from it. Further, during the period January 13,1999 through January 15, 1999, four Newport employees were deposed in Atlanta in connection with this action and the Camelot case.

The first subpoena requesting documents from Newport was issued by the Government on May 1, 1998 in the Camelot case. Because the case was removed from the bankruptcy court to the district court, the Government reissued the subpoena on June 24, 1998. Newport objected to the subpoena on the ground that certain document requests called for irrelevant information, trade secrets, and proprietary information. Newport subsequently responded to the subpoena after the Government consented to the entry of a stipulated protective order maintaining the confidentiality and preventing dissemination of the trade secrets and proprietary information.

The Government issued a second subpoena on October 23, 1998 and issued a third subpoena on December 23, 1998. Because the Government served counsel for Newport instead of a Newport officer or agent authorized to accept service, the Government reissued the December 23, 1998 subpoena on January 6, 1999. In a letter dated November 5,1998, Newport objected to the October 23 subpoena because it maintained that most of the requested documents had previously been produced to the IRS during the examination and administrative review that led to this litigation. In a letter dated January 15, 1999, Newport objected to portions of the January 6 subpoena.

The fourth subpoena, which is the one at issue, was issued by the Government on January 20,1999. On February 9,1999, counsel for Newport forwarded a waiver of service form executed by Newport’s general counsel for this subpoena. In a letter dated March 1, 1999, Newport responded to the January 20 subpoena. Newport objected to Request Nos. 6, 7, 8, and 11, and it notified the Government that its staff was working to locate and provide copies of documents responsive to the other requests. Newport offered to produce documents responsive to Request No. 6 if the Government abandoned Request Nos. 7 and 8.

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191 F.R.D. 132, 85 A.F.T.R.2d (RIA) 345, 1999 U.S. Dist. LEXIS 20289, 1999 WL 1398779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-electric-power-co-v-united-states-ohsd-1999.