Christine C. Peterson v. Commissioner of IRS

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 24, 2016
• Docket: 14-15774
• Status: Published

Opinion

Case: 14-15774 Date Filed: 05/24/2016 Page: 1 of 87

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

Nos. 14-15773, 14-15774 ________________________

Agency Nos. 16263-11, 2068-12

CHRISTINE C. PETERSON, ROGER V. PETERSON,

Petitioners - Appellants,

versus

COMMISSIONER OF IRS,

Respondent - Appellee.

________________________

Petitions for Review of a Decision of the U.S. Tax Court ________________________

(May 24, 2016)

Before ROSENBAUM and FAY, Circuit Judges, and MIDDLEBROOKS, * Judge.

FAY, Circuit Judge:

* The Honorable Donald M. Middlebrooks, United States District Court Judge for the Southern District of Florida, sitting by designation. Case: 14-15774 Date Filed: 05/24/2016 Page: 2 of 87

Christine C. Peterson and Roger V. Peterson 1 appeal the decision of the

United States Tax Court, determining deferred compensation payments under

corporate plans made after Peterson’s retirement from Mary Kay, Inc. (“Mary

Kay”) in tax year 2009 were derived from her former Mary Kay association,

making them subject to self-employment tax. We affirm in part and dismiss in

part.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Mary Kay Sales Structure and Commission Compensation

Mary Kay is a manufacturer and seller of cosmetics, toiletries, skin care, and

related products. Mary Kay has prospered in the United States and

internationally, because of its indigenous, highly incentivized levels of

independent sellers, who are commission compensated. A Mary Kay seller can

progress rapidly according to her sales and commissions; each advancement is

more lucrative to the seller and financially beneficial to Mary Kay. Unique to

Mary Kay are its post-retirement, deferred-compensation programs, the ultimate

1 Although Christine C. Peterson and Roger V. Peterson, husband and wife who filed joint tax returns, have litigated these cases together, the issue on appeal concerns Christine Peterson’s income derived from her retirement distributions, derived from her association with Mary Kay. Hereinafter, “Peterson” refers to Christine Peterson, while “Petersons” refers to the taxpayer couple. 2 Case: 14-15774 Date Filed: 05/24/2016 Page: 3 of 87

financial incentive for Mary Kay sellers, who have risen through the seller ranks

to earn the opportunity to participate in them.

All of Mary Kay’s sellers are independent contractors. The entry level is an

independent Beauty Consultant (“BC”), each of whom enters into a written

agreement with Mary Kay and commits to develop a customer base to whom they

sell Mary Kay products. BCs buy Mary Kay products wholesale and sell them

retail to public customers. BCs have two responsibilities: (1) to build a customer

base and (2) to recruit new BCs, from whom a BC earns commissions on

purchases made by their recruited BCs.

When a BC has recruited 24 independent BCs, she can become a Sales

Director (“SD”), which involves signing a SD agreement with Mary Kay. Her 24

BCs constitute a personal sales unit, from all of whom she earns commissions. A

SD has additional responsibilities: she oversees the BCs under her by educating

and inspiring them to excel in selling Mary Kay products. She also continues to

acquire additional personal units, from which she earns a percentage of their sales

commissions. BCs within a SD’s sales unit may become SDs, resulting in an

offspring sales unit, from which the SD continues to earn a percentage of their

sales commissions.

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A SD is eligible to advance to National Sales Director (“NSD”), the highest

level of the Mary Kay sales network, when she has acquired 20 offspring units and

is approved for the position by a Mary Kay committee. An NSD is the only

appointed Mary Kay sales position; each is required to sign an NSD Agreement,

which states the contingent relationship between an NSD’s responsibilities and her

commission compensation:

NSD recognizes that NSD’s earnings as a National Sales Director are contingent upon the results of NSD’s efforts in promoting the sale of Mary Kay cosmetics and in inspiring, motivating, counselling and aiding others to become successful sellers of Mary Kay cosmetics and successful Unit Sales Directors. NSD agrees to assume responsibility for offering effective, conscientious advice and assistance to Beauty Consultants and Unit Sales Directors wishing to avail themselves of NSD’s experience and suggestions for building successful Mary Kay businesses of their own.

....

In consideration of the commission compensation provided under this Agreement and the other rights and benefits provided hereunder, NSD agrees to conscientiously and faithfully employ NSD’s best efforts to promote the sale of Mary Kay cosmetics throughout the market area served by Director’s Sales Group during the period this Agreement is in effect.

NSD Agreement § 8.1, 8.2, 8.10 (emphasis added). NSDs generally no longer

solicit new Mary Kay customers; instead, they provide training, direction and

motivation through telephone calls, regular meetings, and workshops to Mary

Kay sales personnel, especially those in their networks whose wholesale

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purchases generate their commissions. The NSD Agreement details an NSD’s

status, obligations, and compensation relative to commissions from her sales

units, based on monthly wholesale purchase volume. 2 The percentage for

calculating an NSD’s commissions decreases as the offspring units become

farther removed from the NSD’s original sales unit.3

At the sole discretion of Mary Kay, NSDs, who had maintained a personal

sales unit prior to July 1, 1991, were eligible for a Director Unit Volume Bonus

based on an NSD’s personal sales unit’s monthly Unit Wholesale Purchase

Volume, while concurrently serving as an NSD as designated under Annex II of

the NSD Agreement. Based on the monthly Unit Wholesale Purchase Volume, an

NSD’s bonus ranged from $300 for the sales unit’s sales of $4,000 to $5,999 to

$3,500 for sales of $40,000 or more. NSD Agreement, Annex II at iii. A Senior

2 Regarding commission compensation, the NSD Agreement applicable in this case states the

NSD shall have the right to receive from [Mary Kay] incentive compensation for NSD’s activities in counselling and motivating and promoting retail sales and recruiting of the Units within NSD’s Sales Group which shall be in the form of a monthly commission based upon the total monthly wholesale purchases (“Wholesale Purchase Volume”) of all Mary Kay cosmetics bought for resale by all members of the particular Sales Group counselled and advised by NSD.

NSD Agreement § 3.1 (first emphasis added). 3 An NSD’s commission ranges from 5% to 8% for sales of $3,999.99 or less to $18,000 or more for the Monthly Wholesale Purchase Volume of her First-Line Offspring. NSD Agreement, Annex I at i. An NSD’s commission is 3% on her Second-Line Offspring Sales Unit’s Combined Monthly Wholesale Volume and 1/2% on her Third-Line Offspring Sales Unit’s Combined Monthly Wholesale Volume. Id. 5 Case: 14-15774 Date Filed: 05/24/2016 Page: 6 of 87

NSD also receives a 5% commission, payable on the Wholesale Purchase Volume

of the Personal Sales Unit of a First-Line Offspring Director, who becomes an

NSD; 3% for a Second-Line Offspring Director, who becomes an NSD; and 2%

for a Third-Line Offspring Director, who becomes an NSD. Id. The NSD

Agreement also subjects the NSD to a noncompetition agreement for two years

after termination of her NSD Agreement. 4

4 The noncompetition agreement in the NSD Agreement provides:

In consideration of the commission compensation provided under this Agreement and the other rights and benefits provided hereunder, NSD agrees to continuously and faithfully employ NSD’s best efforts to promote the sale of Mary Kay cosmetics throughout the market area served by Director’s Sales Group during the period this Agreement is in effect. NSD further agrees not to engage; directly or indirectly; in soliciting or recruiting Mary Kay Beauty Consultants or other Sales Directors to sell products or services other than those sold by [Mary Kay] during the period this Agreement is in effect and for a period of two (2) years after its termination. NSD further agrees not to utilize, or knowingly permit any other person to utilize, any names, mailing lists or other non-public business information which NSD obtains during NSD’s association with [Mary Kay] for recruiting or for promotion of the sale of any other company’s products in the United States during the period that this Agreement is in effect and for a period of two (2) years after its termination. NSD further agrees that during the period of NSD’s business relationship with [Mary Kay] as a National Sales Director and for a period of two (2) years following date of any termination of such status for any reason, that NSD will refrain from directly or indirectly soliciting or inducing any Sales Director or Beauty Consultant to terminate their business relationship with [Mary Kay], whether such solicitation or inducement be for NSD’s own account or that of others. NSD further expressly agrees to refrain, during the period of NSD’s relationship with [Mary Kay], whether such solicitation or inducement be for NSD’s own account or that of others. NSD further expressly agrees to refrain, during the period of NSDs relationship with [Mary Kay] as a National Sales Director and for a period of two (2) years following the date of any termination of such status from seeking, receiving, 6 Case: 14-15774 Date Filed: 05/24/2016 Page: 7 of 87

Relevant to this case, the NSD Agreement clearly provides the status of an

NSD is that of an independent contractor, who files state and federal tax returns as

a self-employed individual:

The relationship created and intended to be created is that NSD acts as an independent contractor for commission compensation measured by the results achieved, the measurement of those results being the Wholesale Purchase Volume of NSD’s Sales Group. It is recognized that NSD is not a joint venture with, or partner, agent or employee of [Mary Kay]. Nothing in this Agreement shall be deemed to permit or empower NSD to conduct business in the name of, or on account of [Mary Kay], or to incur or assume any expense, debt, obligation, liability, tax or responsibility in behalf of, or in the name of [Mary Kay] or to act in [Mary Kay’s] behalf to bind [Mary Kay] in any way whatsoever. [Mary Kay] shall have and reserves no right of power to determine or control the manner, means, modes or methods by which NSD performs NSD’s activities or accomplishes NSD’s objectives hereunder and shall only look to

or accepting directly or indirectly, any fee, commission, override commission, financial benefit, contract right, monetary or non-monetary reward or other form of compensation from any other company or business organization based on or associated with the solicitation, recruitment, enrollment or association by employment, contract or otherwise for such company or business organization of any person whom NSD knows or has reason to believe is then under contract as a member of [Mary Kay] or business organization of any person whom NSD knows or has reason to believe is then under contract as a member of the Mary Kay independent sales organization. NSD agrees that [Mary Kay] may have, in addition to any other remedies available at law, an injunction restraining NSD from any violation of the terms of this Section 8.10, and that a temporary restraining order may be issued, without prior notice to NSD, upon sworn application therefor being made by [Mary Kay] setting forth the facts constituting any such alleged violation.

NSD Agreement § 8.10 (emphasis added).

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NSD for results achieved, as measured by the Wholesale Purchase Volume of NSD’s Sales Group.

As an independent contractor, NSD shall have the obligation to file all necessary income tax returns to reflect self-employment income in a manner required by any applicable state or Federal laws or governmental regulations and, in connection therewith, [Mary Kay] shall furnish NSD with a statement in the form prescribed by law reflecting all compensation including all commissions, prizes, awards, or other compensation paid by [Mary Kay] to NSD or on NSD’s behalf during the year or other legally prescribed reporting period.

The independent NSD will not be treated as an employee with respect to any services for state or Federal tax purposes, or otherwise.

Id. § 11.1, 11.3, 11.4 (emphasis added).

The NSD Agreement clarifies that NSDs are compensated by commissions

for sales of their sales units. They are not salaried employees but independent

contractors, whose incentive to increase their income is based on commissions

from sales of their sales units. It is to the financial benefit of an NSD and her sales

units working under her to maximize sales of Mary Kay products. Significantly,

the NSD Agreement in this case provides: “[Mary Kay] reserves the right to alter,

modify or change any discount, commission and bonus provision of this Agreement

from time to time by not less than sixty (60) days’ prior written notice to NSD to be

effective on or after the commencement of any annual renewal term of this

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Agreement.” 5 NSD Agreement § 3.4 (emphasis added). While Mary Kay has a

sales network of approximately 2.7 million worldwide, there are only 200 NSDs

and approximately 155 “emeritus” or retired NSDs. 6

B. Mary Kay Post-Retirement, Deferred-Compensation Programs for NSDs

Mary Kay offers two post-retirement, deferred-compensation programs for

which only NSDs are eligible as part of their pay package: (1) the Family

Security Program (“Family Program”) and (2) the Great Futures Program

(“Futures Program”). Jill Wedding, Mary Kay Director of Consultant

Management, testified at trial in the Tax Court: “I don’t know another direct

selling company that offers anything like [these Programs].” Trial Tr. 176. While

the retirement Programs are voluntary, if an NSD participates in either Program,

she must sever her NSD Agreement with Mary Kay at age 65, when the

Programs become effective. Wedding testified that she had “never seen [an

eligible NSD] decline” either program, since they are incentive for an NSD to

5 The NSD Agreement provides it is an annual calendar-year, employment contract : “Unless otherwise terminated pursuant to the provisions hereof, the initial term of this Agreement shall commence on the date first above written and end on December 31 of the same year and the Agreement shall be automatically renewed each January 1 thereafter for additional periods of one (1) year each.” NSD Agreement § 9. 6 Jill Wedding, Mary Kay Director of Consultant Management, testified at trial in the Tax Court that Mary Kay refers to NSDs, who have completed their work for Mary Kay and thereby ended their NSD Agreements as “emeritus” rather than “retired,” because “[w]e just don’t use retirement since [NSDs] are self-employed.” Trial Tr. 175. Nonetheless, we will use “retired” and “emeritus” interchangeably to refer to NSDs no longer actively associated with Mary Kay. 9 Case: 14-15774 Date Filed: 05/24/2016 Page: 10 of 87

maximize the sales of her area, because the Programs are “so financially

lucrative,” when she enters emeritus status; this incentive also means “[m]ore

revenue” for Mary Kay. Id.

1. Family Program

The preamble of the Family Program, adopted effective July 1, 1991,

“recognizes the valuable contribution made by those select group of independent

contractors who have attained the coveted position of ‘National Sales Director,’”

and Mary Kay “desires to establish a program which will offer financial security

and other valuable consideration to the National Sales Director and her family.”

Family Program, Preamble. 7 To be eligible for the Family Program, an NSD must

elect to participate; have an NSD Agreement with Mary Kay; have attained 65, the

normal retirement age; and have completed 15 years as an NSD. 8 Family Program

art. I, § 1.1, art. IV, § 4.1. The election of a NSD to participate in the Family

Program is “irrevocable.” Id. art. III, § 3.1. Each NSD who participates in the

Family Program “shall continue as a Participant under the Plan so long as she is

under contract with [Mary Kay] as an NSD.” Id. § 3.2. “An NSD shall receive

credit for NSD Service commencing with the original effective date of the NSD

7 Wedding testified the Family Program was “an incentive program to thank [NSDs] for building other successful Mary Kay independent consultants and directors.” Trial Tr. 180. 8 The Family Program also provides for early retirement at 55 with 5 years of NSD service. Family Program art. IV, § 4.3. 10 Case: 14-15774 Date Filed: 05/24/2016 Page: 11 of 87

Agreement executed by the NSD” for as long as she continues to be “an NSD

under a current and valid National Sales Director’s Agreement, including any

subsequent renewal, revision, amendment, modification or replacement” made by

Mary Kay to the NSD Agreement. Id. § 3.3(b).

The Family Program provides three types of benefits to an NSD and her

family: (1) if she dies or (2) becomes disabled after serving one year as an NSD,

and (3) financial payments for 15 years after the NSD takes emeritus status. The

financial payments, which are at issue in this case, are calculated on the average of

the highest three years of an NSD’s commissions of her last five years before

becoming emeritus. The amount the retired NSD is paid results from “a certain

percentage [of her former commissions] based on her age when she debuts as an

emeritus.” Trial Tr. 174. As part of NSDs’ pay package, Wedding testified the

Family Program payments are “based on the services they provided when they

were an active independent national sales director.”9 Id. 184 (emphasis added).

An NSD, Family Program participant, who retires at 65 after 15 years as an NSD,

receives the highest retirement benefit of 60% of her “Final Average Commissions,

9 Nan Smoot, Mary Kay Director of United States Taxes, testified the purpose of the Family Program “is to provide for incentive payments based on past services.” Trial Tr. 259 (emphasis added). It gave participating NSDs incentive to “increase [their] wholesale area production which would provide for greater compensation in the future.” Id. 260.

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payable for 15 years.” 10 Family Program, Addendum I. “The Participant’s

normal retirement benefit shall be payable in the Normal Form of benefit payment

and shall be payable in monthly amounts equal to one-twelfth (1/12th) of the

annual amount of such benefit.” 11 Id. art. V, § 5.1.

The Family Program Agreement clearly states it is not an employment

contract and an NSD, Family Program participant is an independent contractor:

Participant hereby acknowledges her legal status as an independent contractor, and pursuant to Internal Revenue Service Code Section 3508, the services she performs as a direct seller [prior to retirement] are such that she is not treated as an employee of [Mary Kay] for Federal tax purposes, or otherwise. Further, her association with the Company is not to be construed as creating an agency relationship, or any other relationship . . . . The Plan is not an employment contract and it shall not be construed to create or otherwise give any NSD any employment right with [Mary Kay]. The maintenance of the Plan by [Mary Kay] shall not in any manner affect [Mary Kay’s] rights to alter, modify or terminate its contractual arrangement with any NSD.

Id. art. X, § 10.3 (emphasis added).

The Family Program contains a noncompetition agreement that states the

consideration an NSD has received from Mary Kay is its confidential and

10 “‘Final Average Commissions’ means the NSD’s annual average NSD Commissions for the three Plan Years during which the NSD had the highest amount of NSD Commissions during the last five Plan Years of NSD Service.” Family Program art. II, § 2.1(h). 11 “‘Normal Form’ means the payment of a retirement benefit, disability benefit or death benefit to or with respect to [an eligible NSD Family Program Participant] (as the case may be) for a period of 15 years from the date on which the first payment of a benefit was made to or with respect to a [NSD Family Program Participant].” Family Program art. II, § 2.1(n).

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proprietary information, including marketing, financial, and product-development

information as well as sales lists. In return, an NSD Participant agrees not to use

this valuable information outside of Mary Kay for the NSD’s profit, which conduct

would constitute a breach of the NSD’s relationship with Mary Kay and give Mary

Kay the right to take legal action against the violating NSD. 12

12 The noncompetition agreement for the Family Program provides:

Participant acknowledges that, during her association with [Mary Kay] as an NSD, she will have access to valuable information which is highly confidential and proprietary in nature, such as marketing and financial information, product development information and sales organization lists. Participant agrees that she has received valuable consideration from [Mary Kay] in the form of specialized skin care training and sales management training in connection with her qualifications for, and business career as an NSD. Additionally, Participant acknowledges that she has received valuable publicity, goodwill, nationwide advertising and promotional support from [Mary Kay] to enhance her business success. In consideration of the rights and privileges contained in the Plan and other valuable consideration referenced herein, Participant agrees to faithfully observe and comply with the following covenants and agreements for so long as Participant is entitled to receive benefits under the Plan: (1) Participant agrees not to promote, distribute or sell to other members of the Mary Kay sales organization in the United States of America, without [Mary Kay’s] prior written approval, any products or services which are not produced, sold or endorsed in writing by [Mary Kay]; and (2) Participant agrees not to promote, distribute or sell to anyone any products which are not produced, sold and/or distributed by [Mary Kay] in a manner which would falsely designate or suggest, or would be likely to suggest or indicate such products as originating with, or endorsed by [Mary Kay]; and (3) Participant agrees not to engage, directly or indirectly in recruiting Mary Kay Beauty Consultants, Sales Directors or National Sales Directors in the United States of America to sell products or services other than those sold by [Mary Kay], or to utilize, or knowingly permit any other person to utilize, any names, mailing lists or other information which Participant has obtained during Participant’s association with [Mary Kay] for recruiting or for promotion of the sale of any other company’s products or services; (4) Participant agrees to refrain from directly or indirectly soliciting or inducing any National Sales Director, Sales Director or Beauty Consultant in the United States of America to terminate their business relationship with [Mary Kay], whether such solicitation or 13 Case: 14-15774 Date Filed: 05/24/2016 Page: 14 of 87

In return for their longevity in overseeing a successful sales network in the

United States, the Family Program gave eligible NSDs an opportunity to provide

for deferred income following their retirement from Mary Kay with an income

percentage of the sales commissions of the sales network the NSD had developed.

For an NSD who retired at the normal retirement age of 65, 13 the income amount

was 60% of her Final Average Commissions, the average NSD commissions for

inducement be for Participant’s own benefit or that of others; and (5) Participant agrees to refrain from seeking, receiving or accepting, directly or indirectly, any fee, commission, override commission, financial benefit, contract right, monetary or non-monetary reward or other form of compensation from any other company or business organization based on or associated with the solicitation, recruitment, enrollment or association by employment, contract or otherwise for such company or business organization of any person whom Participant knows or has reason to believe is then under contract as a member of the Mary Kay independent sales organization. Participant agrees that [Mary Kay] may have, in addition to any other remedies available at law, an injunction restraining Participant from any violation of this Section 10.2, and that a Temporary Restraining Order may be issued without prior notice to Participant, upon sworn application therefore being made by [Mary Kay] setting forth the facts constituting any such alleged breach of the Plan provisions.

Family Program art. X, § 10.2 (emphasis added). 13 “‘Normal Retirement Date’ means the January 1 immediately preceding or immediately following the date on which the Participant attains age 65 or any January 1 following the date on which Participant has completed 15 years of NSD Service.” Family Program art. II, § 2.1(o).

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the three years an NSD had the highest amount of NSD commissions during the

final five Family Program years of NSD service.14

2. Futures Program

While the Family Program provided post-retirement, commission income to

an NSD participant from her domestic sales network, the Futures Program

incentivized an NSD to use her leadership skills in Mary Kay’s emerging markets

in countries outside the United States by affording similar post-retirement, global-

network-commission income to an NSD participant. The preamble of the Futures

Program “recognizes the valuable contribution made by those select group of

independent contractors who have attained the coveted title of ‘Independent

National Sales Director’ . . . within its independent sales organization and have

extended their Mary Kay business into certain designated countries beyond the

boundaries of the United States of America,” and Mary Kay “desires to establish a

program which will offer financial reward and other valuable consideration to the

NSD and her family.” Futures Program, Preamble. Mary Kay established the

Futures Program effective January 1, 2005, “for the benefit of its NSDs who have

14 The sales network, commission percentages varied according to the NSD’s age at retirement. The percentages ranged from 40% for early retirement at 55 to 58% for retirement at 64. Family Program, Addendum I. An NSD eligible for early retirement under this schedule would “receive the ‘Applicable Percentage’ of [her] Final Average Commissions, payable for 15 years.” Id. 15 Case: 14-15774 Date Filed: 05/24/2016 Page: 16 of 87

extended their Mary Kay business into certain designated countries outside of the

United States of America.” Futures Program art. I, § 1.1.

The normal NSD participant must be “credited with at least 5 years of NSD

service” and “shall discontinue her Mary Kay business in the Applicable GLDP

Market(s) . . . as of the Normal Participation Date applicable to such

Participant.” 15 Id. art. IV, § 4.1 (emphasis added). “The Normal Participation

Date shall be the January 1 immediately preceding or immediately following the

date on which such Participant attains age 65” and “such Participant has completed

15 years of NSD Service.” Id. “[I]n no event shall the Normal Participation Date

hereunder be different from the Participant’s Normal Retirement Date under

Participant’s Family Security Program.” Id. An NSD’s election to participate in

the Futures Program also is “irrevocable.” Id. art. III, § 3.1. An eligible NSD who

elects to participate in the Futures Program first must have submitted a

Participation Agreement and a Beneficiary Designation Form to Mary Kay. Id. A

retired NSD participating in the Futures Program is eligible to receive monthly

15 GLDP means Global Leadership Development Program, which was created by Mary Kay “to give those experienced members of its independent sales organization, specifically Independent Sales Directors and Independent National Sales Directors, the opportunity to enhance their income earning potential by extending their Mary Kay business beyond the United States of America into certain designated countries.” Futures Program art. II, § 2.1(j).

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Normal Participation Awards “based on the NSD GLDP Commissions of the

Participant’s Great Futures Area for the applicable month.”16 Id. art. V, § 5.1.

Like the Family Program, retired NSDs, with a minimum of 5 years as an

NSD, earn commission percentages of sales of their foreign sales units depending

on their age at retirement. These percentages range from 40% for retirement at 55

to 60% for retirement at 65, paid monthly for 12 years. 17 Futures Program,

Addendum I. The Futures Program contains a noncompetition agreement with the

same provisions as the noncompetition agreement in the Family Program for a

retired NSD participant. Futures Program art. X, § 10.2. The Futures Program

also provides disability and death benefits payable to the NSD’s designated

beneficiary. Futures Program art. V, § 5.3, 5.4.

16 NSD GLPD Commissions refers to “all commissions paid to an NSD by [Mary Kay] for her business as an NSD in each respective” country outside of the United States, “based on the total Net Wholesale Volume Production and the GLDP commission in effect.” Futures Program art. II, § 2.1(r). NSD GLPD Commissions “includes both the annual NSD Offspring Development Bonus for NSD offspring and the annual, qualified first-line Independent Sales Director Offspring Development Bonus.” Id. “The term does not include other commissions from her personal unit, or other prizes, contest or awards.” Id. Great Futures Area “means Participant’s NSD GLDP Commissionable Area existing,” when the NSD retired “in exchange for the opportunity to participate in” the Futures Program. Id. art. II, § 2.1(k) (emphasis added). “Great Futures Area shall be as composed” in each country outside the United States, when the NSD’s participation in the Futures Program becomes effective, “subject only to any growth or reduction within the Great Futures Area, including debut of new units and termination of existing units, in each” country. Id. 17 “The monthly award for those [NSD] Participants under Normal Participation [65 at retirement] is 60% of NSD GLDP Commissions of the Participant’s Great Futures Area for that particular month, subject to Participant’s Great Futures Area having Net Wholesale Production for the respective month, for twelve (12) consecutive years.” Futures Program, Addendum I. 17 Case: 14-15774 Date Filed: 05/24/2016 Page: 18 of 87

As in the Family Program, an NSD under the Futures Program receives the

designated percentage of commissions from her foreign sales units after she retires

and is no longer providing training and motivation to them. If she effectively

trained her sales units while she was an active NSD, then her foreign sales units

should be able to continue to produce the same level of sales “after she’s no longer

providing services.” Trial Tr. 272. The incentive to an NSD is to maximize

training her foreign sales units; if they continue to produce, she enhances her

retirement commission compensation as well as Mary Kay’s profits. If she does

not train them to produce successfully, then they will not perform well after the

NSD’s retirement and her post-retirement commission compensation will diminish

accordingly.

Regarding the Futures Program as it related to post-retirement commissions of

an NSD who trained sellers in emerging markets in foreign countries, Smoot

likened Mary Kay’s Futures Program to “succession planning in a normal office

environment.” Trial Tr. 313. In building a foreign market for Mary Kay products,

it takes time “for [sellers abroad] to catch the excitement that the national sales

director hopefully is, in those services she’s providing to that country.” Id. 313.

While the fruition of the sales of the NSD may be delayed by “teaching [the

foreign sellers] the right things,” they “will be successful because you taught them

well.” Id. 313-14. Consequently, by “providing education, training, team

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building, motivation, [which] is sustainable going forward . . . that ability will

continue and . . . will be reflected in future sales.” Id. at 313. While initial sales in

a new foreign market would not be comparable to sales in a new market in the

United States, the foreign sales were expected to increase under the training and

guidance of the NSD.18 Developing a foreign Mary Kay sales market for an NSD,

who knew she would be retiring within a few years, was a timely incentive to

invest her efforts there, because she would benefit financially in retirement with

the success of her foreign sales units after she retired, as would Mary Kay.

Additionally, like the Family Program, the Futures Program agreement

provides the participating NSD is an independent contractor without employment

rights with Mary Kay:

Participant hereby acknowledges her legal status as an independent contractor, and the services she performs as a direct seller are such that she is not treated as an employee of [Mary Kay] for Federal tax purposes, or otherwise. Further, her association with [Mary Kay] is not to be construed as creating an agency relationship, or any other relationship other than as previously stated in this Section 10.3. The Program is not an employment contract and it shall not be construed to create or otherwise give any NSD any employment right with [Mary Kay]. The maintenance of the Program by [Mary Kay] shall not in any manner affect [Mary Kay’s] rights to alter, modify or terminate its contractual arrangement with any NSD. 18 Smoot testified that Peterson “provided [sales] services in Mexico and there were three or four other countries that she provided services to, although they were very, very small.” Trial Tr. 270. Consequently, Peterson’s Futures Program commissions were considerably less than her commissions from the domestic Family Plan. 19 Case: 14-15774 Date Filed: 05/24/2016 Page: 20 of 87

Futures Program art. X, § 10.3 (emphasis added).

C. 2008 Amendments to NSD Retirement Programs

Both the Family Program and the Futures Programs provided Mary Kay

could “amend, modify or terminate” them “at any time and in any manner.”

Family Program art. VIII, § 8.1; Futures Program art. VIII, § 8.1. Effective

December 1, 2008, Mary Kay amended both Programs under art. VIII, § 8.1 with

the respective prefacing explanation: “Mary Kay Inc. acting through its Board of

Directors hereby amends the Program as follows to comply with new tax rules

under Internal Revenue Code Section 409A.” Preface to Mary Kay 2008

Amendment No. 1 to the Family Program & Futures Program. Accordingly, art. X

of each Program was amended by adding section 10.9, stating “Section 10.9 is

added to specifically reflect compliance with Section 409(A) of the Internal

Revenue Code:”

Internal Revenue Code Status. The Program [Plan] is intended to be a non-qualified deferred compensation arrangement and is not intended to meet the requirements of Section 401(a) of the Code. The Program [Plan] is intended to meet the requirements of Section 409A of the Code and shall be construed and interpreted in accordance with such intent. No person connected with the Program [Plan] in any capacity, including but not limited to [Mary Kay] and any affiliates of [Mary Kay] and their respective directors, officers, agents and employees, makes any representation, commitment or guarantee that any tax treatment, including but not limited to federal, state and local

20 Case: 14-15774 Date Filed: 05/24/2016 Page: 21 of 87

income, estate, and gift tax treatment, will be applicable with respect to any amounts deferred or payable under the Program [Plan] or that such tax treatment will apply to or be available to a Participant on account of participation in the Program [Plan].19

Mary Kay Amend. No. 1, § 10.9, Family Program & Futures Program (emphasis

added).

Smoot testified she was involved in drafting the Mary Kay Amendments for

the Family Program and Futures Program in 2008 to ensure they complied with

IRS regulation 409A. She explained the IRS “did not want a receiver of income to

be able to manipulate what year they received the income”; “if . . . deferred

compensation plans were not compliant with the 409A rules, . . . the person who

would be receiving the payments, would be subject to a 20 percent penalty on the

plan amounts” plus “100 percent of all amounts under the plan to be paid in the

future, that amount would be subject to tax up front.” Trial Tr. 285, 286.

Consequently, Smoot testified the 2008 Amendments to the Family and Futures

Programs were favorable to a participating NSD, because, instead of the 20 percent

penalty, the regular income tax rate would have applied “on all future payments

covered under the contract.” Id. at 286. As the Tax Court judge clarified with

Smoot, this penalty tax would have been imposed “before receipt . . . , if the

Program did “not comply with [the IRS] rules,” which Smoot testified would be

“pretty onerous” to the NSD participants. Id. at 286, 287 (emphasis added).

19 The amendment to the Family Program uses “Plan” instead of “Program.” 21 Case: 14-15774 Date Filed: 05/24/2016 Page: 22 of 87

Through the 2008 Amendments, Smoot testified the intent of Mary Kay was to

make “extremely clear to the IRS” that the 409A rules applied, which was to the

benefit of the NSDs participating in the Family Program and Futures Program. Id.

at 289.

In response to the judge’s inquiry as to the significance of a nonqualified-

deferred-compensation arrangement, Smoot responded the participant NSDs are

“independent contractors,” and “there’s no way to have a qualified pension plan

for a non-employee. So, it had to be a non-qualified plan. It’s not a pension

arrangement under 401.” Id. at 288 (emphasis added). For tax purposes, Smoot

explained Mary Kay treated payments to NSDs under the Family Program and

Futures Program as deferred compensation based on past services, making them

ordinary deductions for Mary Kay. She testified the 2008 Amendments did not

change Mary Kay’s tax reporting regarding these Programs: “We have always

treated the [Program] payments as payments for past services” or deferred

compensation. Id. at 293. This deferred-compensation treatment for payments

under the Family Program and Futures Program is shown by Mary Kay on its

books, tax returns, and reported to the IRS as nonemployee compensation on Form

1099-MISC.

22 Case: 14-15774 Date Filed: 05/24/2016 Page: 23 of 87

D. Peterson’s Mary Kay Career

Peterson became an independent BC for Mary Kay in the summer of 1982 in

the San Diego, California, area. Because she was extremely successful at selling

Mary Kay products and recruiting new BCs, Peterson had acquired 14 personal

sales units and became a SD in March 1983. Three months later, she had a pink

Cadillac, which was acquired by a SD with a sustained high sales level for 6

months.

Peterson and her husband subsequently moved to Houston, Texas, for several

years, where she became an NSD within her first nine years with Mary Kay. On

July 1, 1991, Peterson signed her National Sales Director Agreement with Mary

Kay, which enabled her to earn commissions on wholesale purchases of Mary Kay

products by her network of independent BCs, SDs, and NSDs. Wedding testified

Peterson was “in the top ten,” sometimes in the top two or three in ranking of all

Mary Kay NSDs, based on sales commissions. Trial Tr. 192.

Peterson and her husband, who was her business partner, next moved to

Chicago, Illinois, for approximately four years.20 Thereafter, the Petersons moved

to Atlanta, Georgia, for approximately eight years. Peterson testified that the

20 Peterson’s husband, who had sold real estate and was retired, instructed her in marketing. He had suggested that they move to Houston and Chicago, respectively the fourth and third largest cities in the United States, for increased ability to add to Peterson’s Mary Kay sales units. 23 Case: 14-15774 Date Filed: 05/24/2016 Page: 24 of 87

moves to large cities were to increase her potential to develop new personal sales

units, which generated her commissions. She explained: “[W]e have no territories.

. . . So I can keep [sales units] that I’d already built,” while adding new ones. Id.

at 205. As an NSD, Peterson did not continue to sell products but focused on

educating, training, and inspiring her sales units and offspring to sell Mary Kay

products and become NSDs. At trial, Peterson testified her relationship to Mary

Kay “was an independent contractor,” meaning “I was in business for myself.” Id.

at 209, 210. She explained: “I was building my business to sell back . . . . I was

building a business. That’s why I was running so hard.” Id. at 211.

As part of Peterson’s NSD compensation package, she was offered the

opportunity to participate in the Family Program and the Futures Program. On

November 1, 1992, Peterson entered into the Family Program agreement, which

became effective for her as of July 1, 1991. Peterson entered into the Futures

Program on July 1, 2005; she and her husband executed the Beneficiary

Designation Form for the Futures Program on January 18, 2011, designating their

daughter, Shannon Andrews, as the beneficiary. Peterson continued as a highly

successful NSD for almost 19 years. The year before her retirement in 2009, she

had an international network of approximately 23,000 individuals and received

commissions on wholesale purchases in excess of $15,000,000.

24 Case: 14-15774 Date Filed: 05/24/2016 Page: 25 of 87

By a Mary Kay letter dated September 26, 2008, Peterson received notice

and copies of the 2008 amendments to the Family Program and Futures Program to

comply with amendments made to the Internal Revenue Code by section 409A.

The letter informed “the revisions contained in these amendments make no

substantive change to the benefits available under the Programs. The changes

simply clarify the language of the Programs to make it absolutely clear that all

provisions are in compliance with section 409A.” Mary Kay letter to Peterson

(Sept. 26, 2008). The letter stated the amendments would become effective on

December 1, 2008. Id.

The Mary Kay letter also included Frequently Asked Questions concerning

the provisions of section 409A of the Internal Revenue Code.

Section 409A generally provides that unless specified requirements are met, all amounts deferred under a nonqualified deferred compensation plan for all taxable years are currently includable in the recipient’s gross income and therefore subject to immediate taxation, and the recipient may be assessed potential interest and penalties. Under section 409A, a nonqualified deferred compensation plan is generally any plan that provides for the deferral of compensation. The deferral of compensation occurs generally if the terms of the plan and relevant facts and circumstances, the service provider has a legally binding right during a taxable year to compensation that is or may be payable in a later taxable year.

Mary Kay letter to Peterson, Frequently Asked Questions at 1 (Sept. 26, 2008)

(second & third emphases added). Specifically addressing the effect of the

25 Case: 14-15774 Date Filed: 05/24/2016 Page: 26 of 87

Amendments on the Family Program and Futures Program, the Frequently Asked

Questions informed:

Section 409A is broad in its application and specifically covers payments to independent contractors that are made on a deferred basis, unless certain specific exceptions are met. Because payments under the Family Security Plan and Great Futures Program begin when you cease active NSD service and are paid out into the future, it appears that these Programs likely fall within the broad definitions applied to section 409A and they were therefore amended to be 409A compliant.

Id. (emphasis added). Regarding Peterson’s notice of the 2008 Amendments,

which stated her commission compensation under the Family Program and Futures

Program would be nonqualified deferred compensation, Smoot testified Mary Kay

heard “[n]ot a word” from Peterson. Trial Tr. 290.

Peterson retired from Mary Kay on January 1, 2009, the year she would

become 65, after being an NSD for almost 19 years. Consequently, she was

entitled to receive 60% of the applicable commissions each year through 2023

under the Family Program and through 2020 under the Futures Program. In 2009,

Peterson received $408,133.44 under the Family Program and $12,840.87 under

the Futures, totaling $420,974.31. Mary Kay reported those Program payments as

Nonemployee Compensation on Form 1099, issued to Peterson for tax year 2009. 21

21 In addition to the 2009 Program payments, the Nonemployee Compensation reported on Peterson’s Form 1099 included non-Program commissions of $68,732.87 she earned in 2008, but were paid to her in January 2009. 26 Case: 14-15774 Date Filed: 05/24/2016 Page: 27 of 87

Despite Peterson’s noncompetition agreements under her NSD, Family

Program, and Futures Program agreements, Peterson testified she “joined another

networking company to start a new business in Isagenix,” which sells health and

nutritional products. Trial Tr. 222. In a conference call, Isagenix asked Peterson

to relate her sales experience, including comparing the sales operation of Mary

Kay and Isagenix. Id. Wedding testified Mary Kay learned Peterson had made

“some derogatory comments” about Mary Kay during this “conference call with

another direct selling organization,” after her retirement. Id. at 170. As a result of

these comments, Mary Kay informed Peterson of being “disappointed” in her. Id.

at 223. Consequently, Peterson testified Mary Kay did not permit her to go on a

Greece cruise, one of three cruises she was entitled to take in her first five years of

retirement under the Family Program. Id. at 223-24. Peterson was not further

penalized for her perceived derogatory comments about Mary Kay, and never

stopped receiving her monthly retirement commissions under the Family Program

and Futures Program from Mary Kay. To date, Peterson’s monthly commission

payments from the Family Program and Futures Program have continued

uninterrupted.

27 Case: 14-15774 Date Filed: 05/24/2016 Page: 28 of 87

E. Petersons’ Businesses and Tax Reporting

In 1991, Peterson hired financial advisor Craig Foster and his company, First

Tax, to assist her with an IRS audit; he also assisted her with a subsequent tax

audit. Pleased with Foster’s services, the Petersons sought his advice regarding

their estate planning and asset protection. Following Foster’s advice, the Petersons

created several business entities. On April 1, 2000, they established the Christine

Peterson Defined Benefit Plan and Trust (“CP Plan”) and designated themselves as

trustees with Peterson as the employer. The Petersons formed NSD Interests, L.P.

(“NSD Interests”), a Georgia limited partnership in December 2002. The

Petersons were limited partners of NSD Interests with NSD Management as the

managing general partner. Peterson and her husband were respectively president

and secretary of NSD Management. For NSD Management to pay compensation

to the Petersons, Foster testified NSD Interests, the “limited partnership, a part of

its ordinary and necessary business expenses, paid management fees to the

managing general partner for services that it rendered through the use of its

employees,” the Petersons. Trial Tr. 127.

Peterson attempted to assign her Mary Kay commissions to NSD Interests

before her retirement. The assignment was ineffective, because Mary Kay did not

consent. On December 29, 2003, NSD Interests entered into an adoption

28 Case: 14-15774 Date Filed: 05/24/2016 Page: 29 of 87

agreement relating to the NSD Interests, L.P., Defined Benefit Plan and Trust

(“NSD Plan”). The adoption agreement provided that it amended and restated the

CP Plan, the previously established qualified plan of the employer, effective

January 1, 2000. The NSD Plan designated NSD Interests as the employer and the

Petersons as trustees.

First Tax prepared all the agreements creating the business entities for the

Petersons and prepared their tax returns for the years involved in this litigation,

2006-2009. Foster testified regarding the interrelationship of the business entities

his company had created for the Petersons:

There were several ways in which Mrs. Peterson and her husband both received monies from the limited partnership. They received compensation from the management company as officers of the management company for services that they were rendering on behalf of the business. They received fringe benefits and allowances for doing the same. They were provided a pension plan through the company for the same, just like any other normal company. And then in their role as limited partners, the partnership distributed the excess profits to them directly through Form K1 as the distribution items.

Id. at 66. For tax purposes, Foster considered the distributive share of limited

partner NSD Interests as not being subject to self-employment tax, because “it was

passive income.” Id.

Regarding Peterson’s 2009 commission payments from the Mary Kay

Family Program after her retirement, Foster considered those payments to be either

29 Case: 14-15774 Date Filed: 05/24/2016 Page: 30 of 87

of two types of characterizations. First was a retirement plan that “was not pre-

funded” with no effect on the balance sheet of Mary Kay, which “simply paid as

they went with respect to this as a promise to the taxpayer.” Id. at 70. Second was

the “purchase of [Peterson’s Mary Kay] business because there was a covenant not

to compete, there was good will associated with it, there was the sale of the assets

of all of the clients’ business and activities, and [she was] prohibited from any kind

of activity involved in Mary Kay going forward.” Id. Foster, however, chose to

characterize Peterson’s emeritus commission income under the Family Program as

“retirement income, ordinary income but clearly not subject to self-employment

tax, because they had no more earnings associated with it.” Id. at 71.

Mary Kay reported nonemployee compensation to Peterson of $750,127 in

2006, $799,191 in 2007, and $892,543 in 2008. In 2009, Peterson retired from

Mary Kay, which reported nonemployee compensation to her under the Family

Program and Futures Program of $489,707. The Petersons timely filed their 2006,

2007, 2008, and 2009 joint federal tax returns. On Schedule C, Profit or Loss

From Business, the Petersons reported “Other Expenses” equivalent to Peterson’s

nonemployee commission compensation from Mary Kay, which are deductions not

subject to self-employment tax. NSD Interests timely filed federal income tax

returns for the same years and reported gross receipts of $750,127, $799,191,

$892,543, and $489,707, the identical amounts reported on the Petersons’

30 Case: 14-15774 Date Filed: 05/24/2016 Page: 31 of 87

Schedules C. NSD Interests claimed deductions of $275,365, $312,266, and

$173,500 for retirement contributions to the NSD Plan relating to tax years 2006,

2007, and 2008.

The Petersons used the same tax-accounting methods in 2009 as they had in

tax years 2006 through 2008. They reported Peterson’s income from the Family

and Futures Programs as “gross receipts or sales” on their joint tax return, and

claimed a deduction in an amount equal to the Mary Kay payments, characterizing

the claimed deduction as “nominee income” of NSD Interests to avoid self-

employment tax. The program payments were reported on the 2009 tax return of

NSD Interests.

F. Tax Court Proceedings

The IRS sent the Petersons a notice of deficiency relative to tax years 2006

and 2007 on April 7, 2011, and a notice of deficiency for tax years 2008 and 2009

on October 18, 2011. The notices advised the Petersons were subject to self-

employment tax for their distributive shares of net partnership income reported by

NSD Interests and had incurred accuracy-related penalties under IRS Code section

6662(a). Residing in Florida, the Petersons timely filed petitions with the Tax

Court on July 11, 2011, and January 23, 2012. In amendments to answers filed on

August 30, 2012, and December 13, 2012, the IRS determined NSD Interests was

31 Case: 14-15774 Date Filed: 05/24/2016 Page: 32 of 87

not engaged in a trade or business during the subject years; deductions made by

NSD Interests were not ordinary and necessary expenses; all income reported to

NSD Interests was allocable to Peterson; NSD Interests did not qualify as an

employer pursuant to IRS Code section 401(c)(4); and Peterson’s nonemployee

Mary Kay compensation was subject to self-employment tax. The Petersons

petitioned the Tax Court for redetermination of their tax deficiencies. Following

concessions, two issues remained for the Tax Court to decide: (1) whether

retirement-plan contributions made by NSD Interests for 2006, 2007 and 2008

were deductible under IRS Code section 404(a), and (2) whether distributions

received by the Petersons during 2009 under the Family Program and the Futures

Program were subject to self-employment tax.

Following trial, the Tax Court issued its Memorandum Findings of Fact and

Opinion. The Tax Court determined NSD Interests was not entitled to deduct

retirement-plan contributions for tax years 2006, 2007, and 2008, because it was

not engaged in a trade or business during those years.22 The Tax Court, however,

22 Regarding whether NSD Interests was engaged in a business during tax years 2006, 2007, and 2008, the Tax Court reasoned:

Petitioners concede that NSD Interests “was not engaged in a trade or business in 2008 . . . and was merely the passive recipient of income”. Mrs. Peterson readily acknowledged that NSD Interests was merely a “structure” to hold her Mary Kay earnings and that it was created “for the tax savings”. Furthermore, petitioners concede that during 2006, 2007, and 2008, NSD Interests had no income and that the income reported on its returns should have been 32 Case: 14-15774 Date Filed: 05/24/2016 Page: 33 of 87

concluded Peterson was an employer for the CP Plan, which entitled her to deduct

the retirement contributions for tax years 2006, 2007, and 2008.23 The Tax Court

decided Peterson’s 2009 retirement distributions from the Family Program and

Futures Program were derived from her former Mary Kay business, and the

Agreements for both Programs provided they were deferred compensation, which

made these distributions subject to self-employment tax. 24

reported on petitioners’ returns. In sum, NSD Interests was not engaged in a trade or business during 2006, 2007, and 2008. Accordingly, NSD Interests is not entitled to deduct retirement plan contributions relating to these years.

T.C. Memo. 2013-271, at 6-7 (Nov. 25, 2013) (citations omitted). 23 In concluding Peterson was entitled to deduct retirement contributions under the CP Plan for tax years 2006, 2007, and 2008, the Tax Court explained:

Respondent concedes that the NSD plan is valid; Mrs. Peterson “was engaged in carrying on a Mary Kay business during the taxable years 2006, 2007, and 2008”; and certain “expenses that were originally reported on the Form 1065 for NSD Interests are allowable as deductions and are reportable on Schedule[s] C of petitioners’ Form[s] 1040”. Mrs. Peterson formed the CP Plan and was designated as the employer pursuant to it. On December 29, 2003, NSD Interests amended and restated the CP Plan. The NSD Plan defined an “Employer” as “the entity specified in the Adoption Agreement, any successor which shall maintain this Plan and any predecessor which has maintained this Plan.” Mrs. Peterson (i.e., a predecessor who maintained the plan) was an “Employer” pursuant to the NSD Plan, and the retirement contributions were “expenses which would be deductible under section 162”. Accordingly, Mrs. Peterson is entitled to deduct, pursuant to section 404(a), the retirement contributions relating to 2006, 2007, and 2008.

Id. at 7-8 (citations and footnote omitted) (alterations in original).

24 Regarding its conclusion the 2009 retirement distributions from the Family Program and Futures Program were subject to self-employment tax, the Tax Court reasoned: 33 Case: 14-15774 Date Filed: 05/24/2016 Page: 34 of 87

The Tax Court’s decision, issued in Case No. 16263-11, concerned the

Petersons’ reporting for tax years 2006 and 2007, before Peterson retired. Tax

Court Case No. 2068-12 dealt with the Petersons’ reporting for tax years 2008 and

2009. The Petersons’ notice of appeal to this court states they are appealing the

attached Tax Court decision, “determin[ing] deficiencies Petitioners owe for 2008

and 2009 Federal income tax.” Notice of Appeal (Dec. 29, 2014). This is Tax

Court Case No. 2068-12. The Tax Court decision in Case No. 16263-11,

concerning the Petersons’ income-tax deficiencies for tax years 2006 and 2007,

Petitioners contend that the distributions they received during 2009 pursuant to the FSP [Family Security Program] and the GFP [Great Futures Program] agreements are not subject to self-employment tax. We disagree. Section 1401 imposes a tax on a taxpayer’s self-employment income. Self- employment income consists of gross income derived by an individual from any trade or business carried on by that individual. Therefore, Mary Kay’s 2009 distributions pursuant to the FSP and the GFP agreements are subject to self- employment tax if they were “derived” from Mrs. Peterson’s business . . . . Pursuant to the FSP agreement, Mrs. Peterson’s distributions were based on her average commissions over the five years prior to her retirement. Pursuant to the GFP agreement, Mrs. Peterson’s distributions were based on the postretirement wholesale volume of her network (i.e., how well the network performed based on her prior services). . . . Moreover, the FSP and GFP agreements expressly provided that the distributions were deferred compensation (i.e., related to Mrs. Peterson’s prior labor). Petitioners failed to adduce proof sufficient to alter the construction of these unambiguous agreements or show that they were unenforceable. Accordingly, the 2009 FSP and GFP distributions are subject to self-employment tax pursuant to section 1401.

Id. at 8-9 (citations omitted) (emphasis added).

34 Case: 14-15774 Date Filed: 05/24/2016 Page: 35 of 87

was not attached to the notice of appeal; they do not address it on appeal.25

Nonetheless, Tax Court Case No. 16263-11 was assigned Appeal No. 14-15773 in

this court, and Tax Court Case No. 2068-12 was assigned Appeal No. 14-15774 in

this court, apparently because these were consolidated cases in the Tax Court.

Both parties agree that only Tax Court Case No. 2068-12, our Appeal No.

14-15774, was appealed. 26 In their reply brief, the Petersons further clarify they

specifically have appealed only tax year 2009, for which the Tax Court found their

tax deficiency for self-employment tax to be $33,594. Accordingly, the sole issue

we address is whether the 2009 distributions from the two post-retirement

Programs are subject to self-employment tax, a first-impression issue for this

circuit.

25 We lack jurisdiction to decide a case improperly appealed procedurally. See Fed. R. App. P. 3(c)(1) (“The notice of appeal must . . . (B) designate the judgment, order, or part thereof being appealed . . . .”); Fed. R. App. P. 13(a)(3) (stating “Rule 3 prescribes the contents of a notice of appeal” from a Tax Court decision). 26 The Commissioner notes: “Because taxpayers did not file a notice of appeal from the decision in Tax Court Case No. 16263-11, this Court lacks jurisdiction and should dismiss No. 14- 15773.” Appellee’s Br. at xvi. The Commissioner further suggests: “It appears that the Clerk of the Tax Court misinterpreted the notice of appeal as appealing from both decisions . . ., presumably because the cases had been consolidated and the notice of appeal was filed [incorrectly] in both. The docketing of No. 14-15773 appears to have resulted from that clerical error.” Id. at n.2 (citations omitted). In their Reply Brief, the Petersons state: “Peterson concurs that this Court does not have jurisdiction over Tax Court Case No. 16263-11 and this Court’s Case No. 14-15773 because Peterson appealed only tax year 2009.” Appellants’ Reply Br. at 1. 35 Case: 14-15774 Date Filed: 05/24/2016 Page: 36 of 87

II. ANALYSIS

We have jurisdiction to review decisions of the Tax Court on appeal “in the

same manner and to the same extent as decisions of the district courts in civil

actions tried without a jury.” 26 U.S.C. § 7482(a)(1). “Generally, the Tax Court’s

findings of fact, like those of a district court, are subject to the ‘clearly erroneous’

standard of review.” Steffens v. Comm’r, 707 F.2d 478, 482 (11th Cir. 1983)

(quoting Comm’r v. Duberstein, 363 U.S. 278, 291, 80 S. Ct. 1190, 1200 (1960));

see Patterson v. Comm’r, 740 F.2d 927, 930 (11th Cir. 1984) (“The tax court’s

finding that an additional tax is due will not be overturned unless clearly

erroneous.”). But “the Tax Court’s rulings on the interpretation and application of

the statute are conclusions of law subject to de novo review,” and its “findings of

ultimate fact which result from the application of legal principles to subsidiary

facts are subject to de novo review.” Estate of Wallace v. Comm’r, 965 F.2d 1038,

1044 (11th Cir. 1992) (citations, internal quotation marks, and alterations omitted).

“The taxpayer has the burden of showing that [s]he did not negligently or

intentionally disregard the [tax] rules.” Patterson, 740 F.2d at 930. We may

affirm the Tax Court on any grounds supported by the record. See Steffens, 707

F.2d at 483.

36 Case: 14-15774 Date Filed: 05/24/2016 Page: 37 of 87

A. Self-Employment Tax and Deferred Compensation

Under the Internal Revenue Code, “[t]he term ‘self-employment income’

means the net earnings from self-employment derived by an individual . . . during

any taxable year.” 26 U.S.C. § 1402(b). Net earnings are defined as “the gross

income derived by an individual from any trade or business carried on by such

individual” less deductions, which are inapplicable to this case. 27 26 U.S.C. §

1402(a). “A tax is imposed on ‘self-employment income’ in order to fund social

security benefits for self-employed individuals.” Patterson, 740 F.2d at 929 (citing

26 U.S.C. §§ 1401, 1402(b)). For those who are self-employed, “it is the

counterpart of the taxes imposed on wages of employees by the Federal Insurance

Contributions Act (FICA).” 28 Steffens, 707 F.2d 481 (citing Newberry v. Comm’r,

76 T.C. 441, 443 (1981)). To be self-employment income, “there must be a nexus

between the income received and a trade or business that is, or was, actually

carried on.” Newberry, 76 T.C. at 444 (emphasis added). In addition, the income

“must arise from some actual (whether present, past, or future) income-producing

activity of the taxpayer before such income becomes subject to . . . self-employment

27 The legislative history of the self-employment-tax provisions shows Congress included the possibility self-employed individuals could continue to receive income from their trade or business after retirement. See S. Rep. No. 81-1669, at 30 (1950), reprinted in 1950 U.S.C.C.A.N. 3287, 3319. 28 The Self-Employment Contributions Act (“SECA”), 26 U.S.C. §§ 1401-1403, “imposes the equivalent of the sum of the employee and employer FICA taxes for employees.” Umland v. Planco Fin. Servs., Inc., 542 F.3d 59, 61 (3d Cir. 2008). 37 Case: 14-15774 Date Filed: 05/24/2016 Page: 38 of 87

taxes.” Id. (emphasis added). “The self-employment tax provisions are broadly

construed to favor treatment of income as earnings from self-employment.” Bot v.

Comm’r, 353 F.3d 595, 599 (8th Cir. 2003).

In enacting 26 U.S.C. § 409A, Congress titled it “Inclusion in gross income

of deferred compensation under nonqualified deferred compensation plans.” The

statute defines a “nonqualified deferred compensation plan” as “any plan that

provides for the deferral of compensation,” other than exceptions not applicable to

this case. 26 U.S.C. § 409A(d)(1). A plan provides for a “deferral of

compensation” where, “under the terms of the plan and the relevant facts and

circumstances, the service provider has a legally binding right during a taxable

year to compensation that . . . is or may be payable to . . . the service provider in a

later taxable year.” Treas. Reg. § 1.409A-1(b)(1) (emphasis added). “The term

‘plan’ includes any agreement or arrangement, including an agreement or

arrangement that includes one person.” 26 U.S.C. § 409A(d)(3). The

consequences of not including deferred compensation under a nonqualified,

deferred compensation plan are interest and a penalty of “20 percent of the

compensation which is required to be included in gross income.” 26 U.S.C. §

409A(a)(1)(B)(i)(II). “It is well settled law that the Commissioner of the Internal

Revenue Service, in determining income tax liabilities, may look through the form

38 Case: 14-15774 Date Filed: 05/24/2016 Page: 39 of 87

of a transaction to its substance.” Bradley v. United States, 730 F.2d 718, 720

(11th Cir. 1984).

The Tax Court concluded the Petersons do not dispute the 2008

Amendments to the Family Program and the Futures Program expressly

characterize them as “deferred compensation (i.e., related to Mrs. Peterson’s prior

labor).” T.C. Memo. 2013-271 at 9. Under the “Danielson rule,” that

characterization is controlling for tax purposes. Comm’r v. Danielson, 378 F.2d

771, 775 (3d Cir. 1967) (en banc); Spector v. Comm’r, 641 F.2d 376, 384-86 (5th

Cir. Unit A Apr. 1981) (adopting the Danielson rule). Our court has explained the

Danielson rule:

When a taxpayer characterizes a transaction in a certain form, the Commissioner may bind the taxpayer to that form for tax purposes. This is the rule: “a party can challenge the tax consequences of his agreement as construed by the Commissioner only by adducing proof which in an action between the parties [to the agreement] would be admissible to alter that construction or to show its unenforceability because of mistake, undue influence, fraud, duress, et cetera.”

Plante v. Comm’r, 168 F.3d 1279, 1280-81 (11th Cir. 1999) (quoting Danielson,

378 F.2d at 775) (alteration omitted). Because Peterson had signed the retirement

Program agreements respectively in 1992 and 2005 permitting Mary Kay to amend

them prospectively, she necessarily had consented to the 2008 Amendments that

39 Case: 14-15774 Date Filed: 05/24/2016 Page: 40 of 87

expressly characterized the Family Program and Futures Program payments as

“deferred compensation” under a nonqualified compensation plan pursuant to

Section 409A of the Internal Revenue Code, 29 which makes the Danielson rule

applicable. 30 See Comm’r v. Nat’l Alfafa Dehydrating & Milling Co., 417 U.S.

29 The dissent asserts Peterson never consented to the 2008 Amendments to the Family Program and Futures Program, which characterize Program payments as deferred compensation under a nonqualified compensation plan pursuant to Section 409A of the Internal Revenue Code. But that is precisely the type of change or clarification to which she agreed under the terms of the two Mary Kay retirement Programs into which she voluntarily elected to enroll. Neither standard Program agreement was personalized for Peterson other than to place her name at the top of each agreement. Both the Family Program and the Futures Program contain identical provisions permitting the Mary Kay Board of Directors to “amend, modify or terminate” either Program “at any time and in any manner.” Family Program art. VIII, § 8.1; Futures Program art. VII, § 8.1 (emphasis added). Consequently, by signing each Program agreement, Peterson entered into separate Mary Kay retirement Program agreements specifically and unambiguously providing Mary Kay could change the Program agreements unilaterally at any time and in any way. 30 The Danielson rule was adopted by the former Fifth Circuit in Spector, 641 F.2d at 384-86, and expressly adopted in this circuit in Bradley, 730 F.2d at 720, and Plante, 168 F.3d at 1280- 81. “Under the well-established prior panel precedent rule of this Circuit, the holding of the first panel to address an issue is the law of this Circuit, thereby binding all subsequent panels unless and until the first panel’s holding is overruled by the Court sitting en banc or by the Supreme Court.” Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001). Nevertheless, the dissent announces the Danielson rule does not apply in this case, because the facts are different from those in Danielson and Plante. Such an approach would abolish our prior panel precedent rule, since the facts of any two cases are rarely, if ever, identical. Our circuit has applied the Danielson rule in cases involving various factual situations to uphold an agreement. See, e.g., Plante, 168 F.3d 1279 (disallowing taxpayer to treat payment to a corporation as a loan when unambiguous stock-purchase agreement stated taxpayer elected to make a capital contribution, absent a showing of Danielson evidence); Bradley, 730 F.2d 718 (prohibiting taxpayers from characterizing funds received from the sale of real property as payments on a continuing option rather than taxable interest income); Spector, 641 F.2d at 386 (recognizing taxpayer may challenge the form of his own transaction only upon presenting “proof of mistake, fraud, undue influence or any other ground that, in an action between the parties to the agreement, would be sufficient to set it aside or alter its construction”). Taxpayers lose under the Danielson rule, when they “fail[] to submit any evidence to prove the existence of a mistake, undue influence, fraud, or duress so as to merit release from the transaction form that they employed.” Bradley, 730 F.2d at 720. The Petersons have presented no proof of mistake, 40 Case: 14-15774 Date Filed: 05/24/2016 Page: 41 of 87

134, 149, 94 S. Ct. 2129, 2137 (1974) (“This court has observed repeatedly that,

while a taxpayer is free to organize his affairs as he chooses, nevertheless, once

having done so, he must accept the tax consequences of his choice, whether

contemplated or not, and may not enjoy the benefit of some other route he might

have chosen to follow but did not.” (citations omitted)). 31

The Tax Court applied the Danielson rule and determined Peterson’s 2009

distributions from the Family Program and Futures Program were “subject to self-

employment tax pursuant to section 1401,” because the Petersons had “failed to

adduce proof sufficient to alter the construction of these unambiguous agreements

or show that they were unenforceable.” T.C. Memo. 2013-271, at 9 (citing Plante,

168 F.3d at 1280-81; Danielson, 378 F.2d at 775). The Petersons do not dispute

the Amendments to the Program agreements unambiguously characterize

undue influence, fraud, or duress that would release Peterson from her Family Program and Futures Program agreements with Mary Kay. 31 The dissent represents the purposes of the Danielson rule are (1) to preclude unjust enrichment, including the economic realities of a party’s unilateral, ex post facto altering the tax consequences of an agreement and (2) to prevent the Commissioner from having to engage in unnecessary “whipsaw” litigation. Unfair enrichment, involving economic realities, is inapplicable to this case. Because Mary Kay had to comply with newly applicable Section 409A of the Internal Revenue Code in 2008, this instead is a case of regulatory compliance. The IRS can be “whipsawed” when it must “litigat[e] against two parties . . . to collect tax from only one party.” Plante, 168 F.3d at 1281. Because the IRS seeks tax from the Petersons solely, its being “whipsawed” is not an issue in this case. “[W]here parties enter into an agreement with a clear understanding of its substance and content, they cannot be heard to say later that they overlooked possible tax consequences.” Danielson, 378 F.2d at 778 (citation and internal quotation marks omitted). 41 Case: 14-15774 Date Filed: 05/24/2016 Page: 42 of 87

Peterson’s post-retirement payments as deferred compensation. The undisputed

lack of ambiguity in the terms of the Program agreements necessarily precludes the

Petersons from “adducing proof which in an action between the parties would be

admissible to alter that construction.” Plante, 168 F.3d at 1280-81. When a

contract is unambiguous, Texas law holds the parties’ intent must be determined

from the contract terms alone. Friendswood Dev. Co. v. McDade & Co., 926

S.W.2d 280, 283 (Tex. 1996); see Valence Operating Co. v. Dorsett, 164 S.W. 3d

656, 662 (Tex. 2005) (recognizing, under Texas law, a written contract must be

construed in accordance with “the true intentions of the parties as expressed in the

instrument” (citations omitted)). 32 Therefore, the Danielson rule requires that the

Petersons are bound by the characterization of her 2009 Mary Kay, post-retirement

Program payments as deferred compensation, subject to self-employment tax.

B. Petersons’ Arguments

Throughout this litigation, the Petersons have argued her 2009 Family

Program and Futures Program payments constituted consideration for Peterson’s

ending her Mary Kay businesses and her agreement not to compete with Mary Kay

32 The NSD, Family Program, and Futures Program Agreements each provide Texas law controls interpretation of the contract terms.

42 Case: 14-15774 Date Filed: 05/24/2016 Page: 43 of 87

post-retirement. 33 In essence, they represent it to be a sale of her domestic and

foreign businesses to Mary Kay. Based on this premise, the Petersons contend her

retirement Program payments did not derive from her previous Mary Kay business

and were not deferred compensation in substance, subject to self-employment tax.

These arguments are belied by the NSD, Family Program, and Futures

Program Agreements as well as the record in this case. There are no sales

agreements to evidence a sale of Peterson’s domestic and foreign businesses to

Mary Kay. 34 “A sale” is defined as “a transfer of property for a fixed price in

33 The Petersons specifically make this representation in their initial and reply briefs: “THE PROGRAM PAYMENTS RECEIVED BY CHRISTINE PETERSON FROM MARY KAY IN TAX YEAR 2009 ARE NOT SUBJECT TO SELF-EMPLOYMENT TAX WHEN THE PAYMENTS . . . CONSTITUTED CONSIDERATION FOR PETERSON’S CESSATION OF HER BUSINESS AND AGREEMENT NOT TO COMPETE.” Appellants’ Br. at 15; Appellants’ Reply Br. at 4 (same). 34 Amici, 27 retired Mary Kay NSDs receiving Family Program and Futures Program payments like Peterson, make the same argument that the noncompetition covenant is consideration for payments under the Family Program and Futures Program for ending their Mary Kay businesses:

[U]nder the [Family and Futures] Programs’ agreements, each NSD expressly promised, in exchange for receiving payments, not to compete with Mary Kay and not to solicit any member of the Mary Kay sales force. The agreements also explicitly state that the Program Payments represent consideration for Mary Kay’s acquisition, at retirement, of the valuable goodwill and other rights associated with the retiring NSD’s business. Each NSD’s business comprises a highly developed network of beauty consultants and sales directors, the purchase of which benefited Mary Kay by providing numerous customers and millions of dollars in sales, revenue, and ultimately profit.

Br. of Amicus Curiae Play Shortstop LLC in Support of Appellants at 7 (emphasis added). Like the Petersons, amici lift the noncompetition covenant from multiple pages of requirements in the Family Program and Futures Program Agreements purportedly to establish consideration for the sale of a NSD’s business on retirement, which the dissent adopts. Amici fail to recognize Mary Kay NSDs are not required to retire at 65. They voluntarily participated in the retirement 43 Case: 14-15774 Date Filed: 05/24/2016 Page: 44 of 87

money or its equivalent.” Iowa v. McFarland, 110 U.S. 471, 478, 4 S. Ct. 210, 214

(1884). Nothing in the subject Agreements contains an express sales agreement or

evidence of vendible business assets.35

Moreover, the covenants not to compete that are one of many provisions in

the three lengthy NSD, Family Program, and Futures Program Agreements were all

broken by Peterson, when she became employed with another direct-selling

company within two years of her Mary Kay retirement. Although Mary Kay

reprimanded Peterson for obtaining what it viewed to be competing employment,

the only action it took against her was to preclude her from taking one of three

Programs, because the Family Program and Futures Program provide them a lucrative income stream in retirement, which augments their highly financially successful, active Mary Kay years. The amicus curiae brief was authored in part by the Petersons’ counsel. Id. at 3. 35 When the sale-of-business argument was made in the context of an insurance salesman’s receipt of extended payments after terminating his business relationship with several insurance companies, the Tenth Circuit reviewed the agreements with the insurance companies and found no evidence of a sale of his business. Schelble v. Comm’r, 130 F.3d 1388, 1394-95 (10th Cir. 1997). That court concluded:

The Agreement does not refer to a seller, buyer or specific property to be sold. . . . This [Agreement] language does not in any way refer to a sale. The Agreement does not refer to a definite purchase price nor does it provide a basis of allocation of payments to a purchase price of assets. There is no indication the parties intended to treat the payments as a sale of an asset.

Id. at 1395. Consequently, the Tenth Circuit determined the insurance salesman’s after- termination-of-employment, extended payments “were not proceeds from the sale of goodwill,” were subject to self-employment tax, and affirmed the Tax Court. Id. But the dissent believes Peterson’s Futures Program payments derive from the non-competition agreement in the Futures Program Agreement. This is despite the fact that the revenue being generated by Peterson’s foreign selling network is the result of her recruiting, training, supervising and motivating them before her retirement. 44 Case: 14-15774 Date Filed: 05/24/2016 Page: 45 of 87

cruises to which she was entitled following her retirement. Significantly, she has

not missed one payment under the Family Program and Futures Program in her

retirement. On the facts of this record, the subject noncompetition agreements,

which the Petersons assert are consideration for the sale of Peterson’s businesses to

Mary Kay, were not determinative in Peterson’s receiving her post-retirement

commissions from her domestic and foreign networks she had trained, when she

was an active NSD for Mary Kay.

The Petersons’ argument that the Family Program and Futures Program

payments are not derived from Peterson’s prior Mary Kay business also is

undermined by the respective Agreements. 36 The Family Program Agreement

delineates the commission percentages Peterson would derive in retirement from

her network. This is the network of BCs, SDs, and NSDs Peterson recruited and

trained to sell Mary Kay products, which they would continue to sell. Under her

NSD Agreement, Peterson received stated percentages of her network’s sales

before she retired. The reason she entered into the optional Family Program was

so that she could continue to receive stated percentages of her network’s sales,

36 After an NSD retires, the selling skills she has taught her network determine the commissions both she and her network will receive. This is the relation and derivation of the NSD’s prior work, which establishes a productive selling network for Mary Kay. Through the Family Program and Futures Program, Mary Kay provides a continuum of taxable commission payments for an NSD into retirement. Therefore, NSDs are not fully compensated before they retire as long as they receive taxable network-commission income derived from the sales skills they have taught their network sellers.

45 Case: 14-15774 Date Filed: 05/24/2016 Page: 46 of 87

which derived from her recruiting and training her network sellers prior to her

retirement. Peterson could have continued working as an NSD and received the

percentages of sales from her network under her NSD Agreement, which did not

require her to retire at 65. When she executed the Family Program Agreement,

however, she committed to retirement at 65 and limited her receipt of percentages

of sales commissions from her network to 15 years, at which time she will be 80.37

The Futures Program provided NSDs incentive to develop a sales network in

other countries, which afforded Mary Kay expansion into foreign markets through

the leadership and training of its best, experienced producers. As a relatively

recent retirement program, the Futures Program provided the retired NSD

considerably less income after retirement than the domestic Family Program

commissions. 38 Nonetheless, it provided additional retirement, network-

commission income to a retired NSD for 12 years by augmenting percentage

commissions from the foreign network the NSD had recruited and trained, like her

domestic network under the Family Program. The percentage of foreign-network-

37 In Peterson’s case, the valuable advantage of the Family Program was that it guaranteed 15 years of percentages of commissions from her NSD network after she turned 65. Without the Family Program, Peterson could become disabled or die; consequently, she and her family would be unable to continue receiving her percentages of commissions from her network prior to her becoming 80. 38 The Mary Kay foreign networks produced less income than the domestic networks, because there were fewer of them, and they had not been in existence long enough to produce the sales- commission income of the domestic networks.

46 Case: 14-15774 Date Filed: 05/24/2016 Page: 47 of 87

commission income was derived from the NDS’s work in other countries pre-

retirement. 39 Payments with the same character as prior commissions constitute

income derived from a petitioner’s self-employment. Erickson v. Comm’r, T.C.

Memo. 1992-585 at 6 (1992).

Despite the Petersons’ references to the clarification in the characterization

of the Family Program and Futures Program commission income under a

nonqualified plan as deferred compensation for tax purposes under the 2008

Amendments one month before Peterson retired in January 2009, no factual or

legal issue has been created. When she signed Family Program and Futures

Program Agreements, Peterson was notified Mary Kay could make changes to the

Programs at any time. She also was given the requisite notice of the effective date,

two months, by a Mary Kay letter dated September 26, 2008. Smoot, who handles

United States tax matters for Mary Kay, testified Peterson did not object after

receiving the letter informing her of this Amendment to the retirement Programs.

The fact this Amendment coincidentally became effective on December 1, 2008, is

39 Peterson recruited, trained, supervised, and coordinated a foreign sales network of some 23,000 sellers from whom she received substantial taxable percentage-commission income. Her foreign network continued to sell Mary Kay products and produce income for Mary Kay, themselves, and Peterson, based on the selling skills she had taught them, after her retirement. This foreign sales income would not exist for Mary Kay, the foreign sales network, or Peterson were it not for the investment of her time and energies to recruit and teach Mary Kay products and selling skills to the foreign network sellers. To say the Mary Kay sales Peterson’s foreign sales network produced after her retirement was not “derived from” her efforts is to deny reality.

47 Case: 14-15774 Date Filed: 05/24/2016 Page: 48 of 87

inconsequential. 40 The Amendment was noticed and effected in accordance with

the Family Program and Futures Program Agreements Peterson had executed with

Mary Kay.

The Petersons and amici argue against subjecting their retirement payments

under the Family Program and Futures Program to self-employment tax.41 They

40 To the extent the dissent states or implies Mary Kay’s notification to NSDs participating in the Family Program and Futures Program that the characterization of Program payments for tax purposes was directed at Peterson, who retired in January 2009, there is no support in the record. In accordance with the Family and Futures Program Agreements, Nathan P. Moore, Mary Kay General Counsel, notified all NSDs participating in the retirement Programs by a September 26, 2008, letter that Mary Kay had adopted Amendment No. 1 to the Family Program and Futures Program to clarify the Programs complied with Section 409A of the Internal Revenue Code, effective December 1, 2008, as required by the IRS for all corporate retirement plans. Moore’s notification letter to NSDs explains the Family Program and Futures Program had been operated with the intent of complying with the official IRS characterization since January 2005. Nan Smoot, Mary Kay Director of United States Taxes, testified in tax court that, because the IRS 409A rules had gone through the procedural process involving several proposals, a comment period, and revisions, affected plans were not required to comply until 2008. Therefore, Mary Kay simply notified NSD Program participants it officially was required to comply with the characterization by the IRS in 2008 for its tax reporting of Family and Futures Program payments to retired NSDs. The fact Peterson retired one month later was purely coincidental. Since her employment with Mary Kay, Peterson had been classified for her tax reporting as a self-employed individual. It is hard to imagine a more ambitious, savvy and sophisticated business person than Peterson, who made geographic moves to progress rapidly through the Mary Kay ranks from BC to become a top NSD earner. She and her husband had employed a financial planner, who testified at the tax trial, to advise them on how to best invest and utilize her earnings for tax purposes. How she decided to invest and shelter her earnings was entirely her choice, but it was her tax reporting of her considerable income from the Program payments that was not acceptable to the IRS. Importantly, Mary Kay’s notification to NSDs participating in the retirement programs was to inform them of the consequences of Mary Kay’s IRS requirement to characterize Program payments as deferred compensation under a nonqualified compensation plan so they could file their taxes accordingly to avoid incurring interest and a 20 percent penalty. Implementing this tax characterization in 2008 by Mary Kay was an IRS requirement. 41 Amici represent approximately 250 Mary Kay, retired NSDs currently receiving payments from the Family Program and Futures Program; that number increases annually with about 20 NSDs retiring each year. Br. of Amicus Curiae at 1. Therefore, amici join the Petersons in 48 Case: 14-15774 Date Filed: 05/24/2016 Page: 49 of 87

primarily rely on two nonbinding circuit cases involving insurance salesmen,

whose payments after terminating their relationships with their insurance

companies were found not to be subject to self-employment tax. Gump v. United

States, 86 F.3d 1126 (Fed. Cir. 1996); Milligan v. Comm’r, 38 F.3d 1094 (9th Cir.

1994) 42; but see Schelble v. Comm’r, 130 F.3d 1388 (10th Cir. 1997) (concluding

representing our decision on self-employment tax on payments from the Family Program and Futures Program will affect an increasing number of retired Mary Kay NSDs. But they fail to recognize that characterizing their retirement-commission payments as nonqualified deferred compensation subject to self-employment tax benefits them by preventing interest and a 20 percent penalty on Family Program and Futures Program payments, if the self-employment tax is not paid. They apparently want to avoid self-employment taxes on these retirement benefits by crafting an accounting, reporting method to recharacterize them, as the Petersons did. This is not permissible under the governing tax law. 42 In 1997, Congress amended 26 U.S.C. § 1402 by adding subsection (k) for the specific purpose of “codif[ying] the standard established in Milligan with respect to termination payments made . . . to an ‘insurance salesman.” Farnsworth v. Comm’r, 83 T.C.M. 1153, 1159 & n.5 (2002) (citing H.R. Rep. No. 105-220, at 458 (1997) (Conf. Rep.)). As codified in § 1402(k), the Milligan standard holds that self-employment tax does not apply to post-termination payments from an insurance company to its former insurance salesman, provided four requirements inapplicable to this case are satisfied. See 26 U.S.C. § 1402(k)(2), § 1402(k)(3), 1402(k)(4)(A), § 1402(k)(4)(B). The Petersons concede § 1402(k) was intended to codify the Milligan standard, which unambiguously applies only to contractual termination payments to former insurance agents. Appellants’ Br. at 19-20. By urging the application of Milligan in this case, the Petersons and amici invite this court to expand § 1402(k) beyond the confines of its text. Appellants’ Br. at 20; Amicus Curiae Br. at 9. If Congress had intended the Milligan standard to be applied outside the context of termination payments to insurance salesmen, it would have so stated. Instead, it unambiguously limited the standard to the context of termination payments to former insurance agents. In addition, the legislative history of § 1402(k) states “[n]o inference is intended with respect to the [self-employment] tax treatment of payments that are not described in [§ 1402(k)].” H.R. Rep. No. 105-220, at 458 (1997) (Conf. Rep.), reprinted in 1997-4 (Vol. 2) C.B. 1457, 1928; see Ruckelshaus v. Sierra Club, 463 U.S. 680, 686 n. 8, 103 S. Ct. 3274, 3278 n.8 (1983) (“If Congress had intended the far-reaching result urged by respondents, it plainly would have said so, as is demonstrated by Congress’ statement that a less sweeping invitation was adopted.”). Moreover, if Milligan accurately reflected the generally applicable “derived from” standard under § 1402(a), then § 1402(k) would be superfluous. See, e.g., Nunnally v. Equifax Info. Servs., LLC, 451 F.3d 768, 773 (11th Cir. 2006) (“It is a cardinal principle of statutory 49 Case: 14-15774 Date Filed: 05/24/2016 Page: 50 of 87

insurance salesman’s after-termination-of-employment payments were subject to

self-employment tax). We distinguish these insurance cases on at least four bases.

First, their products are different. Insurance policies, whether they are for life,

automobiles, fire and casualty, or general coverage involve contracts with a

customer for a specific time period; they have to be renewed, when that term

expires. That is not the case with fungible cosmetic sales, which do not involve

contracts with customers or renewals. Second, the calculation of after-termination-

of-business payments for insurance salesmen is based on methods and concepts,

such as renewals, adjustments, and deductions, which are germane to the insurance

business. Third, while insurance salesmen and Mary Kay NSDs are independent

contractors, their means of operation are entirely different. Insurance salesmen

work singularly; the commissions they garner are the result of each salesman’s

individual work. In contrast, Mary Kay NSDs no longer are selling cosmetics but

lead and train their ever increasing networks, whose sales generate the NSDs’

commissions before and after their retirement, which meet the requirement under a

nonqualified plan for deferred compensation, derived from previous work as an

independent contractor. Fourth and most distinctive, the Mary Kay Family

construction that ‘a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.’” (citation omitted)). We decline to expand § 1402(k) beyond its text, as the Petersons and amici urge. The dissent, however, ignores this legislative history and case law clearly limiting Milligan to insurance salesmen.

50 Case: 14-15774 Date Filed: 05/24/2016 Page: 51 of 87

Program, for percentages of commissions from NSDs’ domestic networks, and

Futures Program, for percentages of commissions from their foreign networks, are

one of a kind. As Jill Wedding, Mary Kay Director of Consultants, testified at the

Tax Court trial, the Family Program and Futures Program are “unique” concerning

after-retirement programs for direct-sales companies. 43 For these reasons, we do

not consider the after-termination payments of insurance salesmen to be

comparable to the Mary Kay Family Program and Futures Program for the purpose

of determining whether commission payments received by NSDs in retirement are

subject to self-employment tax as deferred compensation under a nonqualified

plan. The Petersons “failed to establish that [Peterson] qualified for an exemption

to the [self-employment] tax” imposed on her 2009 deferred payments for the

Family Program and Futures Program. Patterson, 740 F.2d at 929.

On the facts of this case and controlling law, we hold the percentage

commissions received by Peterson, a retired NSD, under the Family Program and

Futures Program are subject to self-employment tax, because they are classified

specifically as deferred compensation, derived from her prior association with

43 We do not have the insurance agreements to determine if those provisions or the quantity/quality test used in the insurance business has any genuine relevance to Mary Kay’s unique product-sales operation. The obvious differences, however, are notable. For example, the insurance cases, on which the dissent relies, do not involve sales networks in foreign countries.

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Mary Kay. Because the Petersons did not pay the self-employment tax Peterson

owed for her 2009 commission payments from the Family Program and Futures

Program, “the tax court did not err in upholding the additional tax imposed by the

IRS,” including interest and penalties. Id. at 930. The appeal from the decision of

the Tax Court upholding Peterson’s self-employment tax for 2009, our Appeal No.

14-15774, is AFFIRMED. The consolidated appeal from the decision of the Tax

Court relating to tax years 2006 and 2007, our Appeal No. 14-15773, is

DISMISSED as improperly filed.

AFFIRMED IN PART; DISMISSED IN PART.

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ROSENBAUM, Circuit Judge, dissenting in part and concurring in the judgment in part:

To be taxable as self-employment income, an individual’s income must be

(1) derived, (2) from a trade or business, (3) carried on by that individual. See 26

U.S.C. § 1402(a)-(b). Here the parties agree that the payments Christine Peterson

received under Mary Kay’s Family Security Program and Great Futures Program

(collectively, the “Programs”) are related in some way to the Mary Kay business

formerly carried on by Peterson. The only issue is whether the payments “derive”

from that business.

The Majority holds that they do based on the “Danielson rule.” Maj. Op. at

pp. 36-41. That judge-made rule permits the Commissioner of the Internal

Revenue Service to bind a taxpayer to her initial characterization of the form of a

transaction. See generally Comm’r v. Danielson, 378 F.2d 771 (3d Cir. 1967) (en

banc); see also Plante v. Comm’r, 168 F.3d 1279, 1280 (11th Cir. 1999). The

Majority asserts that, by operation of the agreements Peterson executed to enroll in

the Programs, she consented to Mary Kay’s characterization of Program payments

as “deferred compensation.” According to the Majority, she is therefore prohibited

from challenging that characterization by the Danielson rule. Because it is well-

established that “deferred compensation” derives from a taxpayer’s prior labor and

is subject to the self-employment tax, the Majority concludes that Peterson must

pay the self-employment tax on the program payments. 53 Case: 14-15774 Date Filed: 05/24/2016 Page: 54 of 87

Peterson, however, never characterized the payments as deferred

compensation. Instead, the agreements Peterson executed to enter Mary Kay’s

programs empowered Mary Kay to make unilateral amendments to the Programs.

Years after Peterson and Mary Kay entered into the agreements, Mary Kay

invoked that power to unilaterally characterize payments made under the Programs

as “deferred compensation.” The Danielson rule has never been applied on facts

like these. Nor should it be. Accordingly, I cannot agree with the Majority

opinion’s application of the Danielson rule here and respectfully dissent from that

portion of the opinion.

Because I would hold that the Danielson rule is inapplicable here, I would

apply the well-established Newberry test to determine whether there is a “nexus”

between the payments Peterson received under the Programs and her Mary Kay

business. Newberry v. Comm’r, 76 T.C. 441, 444 (1981). Such a nexus exists

between the Family Security Program payments and Peterson’s work as a Mary

Kay National Sales Director, so I concur in the Majority’s judgment holding that

the self-employment tax is applicable to these payments. On the other hand, there

is no such nexus between the payments made under the Great Futures Program and

Peterson’s Mary Kay labor, so I would hold that the self-employment tax is

inapplicable to those payments, and I therefore respectfully dissent from the

Majority’s judgment to the contrary.

54 Case: 14-15774 Date Filed: 05/24/2016 Page: 55 of 87

I.

The parties agree that if the payments made to Peterson pursuant to the

Family Security Program (“Family Program”) or Great Futures Program (“Futures

Program”) “derived” from her work as a Mary Kay National Sales Director

(“NSD”), they are subject to the self-employment tax. See 26 U.S.C. § 1402(a)-

(b); Milligan v. Comm’r, 38 F.3d 1094, 1097 (9th Cir. 1994). It is likewise well-

accepted, and again the parties agree, that “deferred compensation” necessarily

“derives from” a trade or business within the meaning of § 1402(a)-(b). See

Jackson v. Comm’r, 108 T.C. 130, 137-38 (1997) (holding that payments were not

subject to self-employment tax because they were not deferred compensation);

Milligan, 38 F.3d at 1099 (9th Cir. 1994) (same). The parties therefore agree that

if the Family Program and the Futures Program payments are deferred

compensation, they are subject to the self-employment tax. But the parties dispute

whether Program Payments are, in fact, deferred compensation.

A.

The Majority sides with the Commissioner of the Internal Revenue Service

(“Commissioner” or “IRS”) and holds that the payments are “deferred

compensation” under the Danielson rule. The Danielson rule permits the

Commissioner of the IRS to bind a taxpayer to the tax consequences of her

agreement, as construed by the Commissioner, unless the taxpayer “adduc[es]

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proof which in an action between the parties to the agreement would be admissible

to alter that construction or to show its unenforceability because of mistake, undue

influence, fraud, duress, etc.” Danielson, 378 F.2d at 775.

In Danielson, the stockholders of Butler County Loan Company (“Butler”)

decided to sell the company to Thrift Investment Corporation (“Thrift”) for $374

per share. 378 F.2d at 773. Thrift drafted the sales agreement and allocated $222

per share to the contract for the sale of stock and $152 per share to a covenant not

to compete because the allocation to the covenant provided favorable tax

consequences for Thrift. Id. After signing the sales agreement and receiving the

funds, each of the Butler stockholders reported the entire sum he or she received as

capital gains. Id. at 773-74. The Commissioner issued a notice of deficiency with

respect to the sum attributable to the covenant not to compete. Id. at 774.

In the Commissioner’s view, that portion of the payment was taxable as

ordinary income, that is, at a higher rate than capital gains. Id. at 774. Upon the

stockholders’ petitioning for a redetermination of the deficiency, the Tax Court

ruled in favor of the stockholders, holding that “the covenants were not realistically

bargained for by the parties and that the amounts allocated thereto by Thrift were

in reality that part of the purchase price of the stock which represented a premium

on corporate receivables.” Id.

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The Commissioner appealed the decision. Id. On appeal, the Third Circuit

formulated the Danielson rule and reversed the Tax Court, holding that the

taxpayers could not escape the tax consequences of the sales agreement’s explicit

allocation of $152 per share to the covenant not to compete. Id. at 774-79.

We’ve adopted the Danielson rule and applied it in factually similar

situations to the one found in Danielson. See Plante, 168 F.3d at 1280-81

(applying Danielson rule to hold a taxpayer to a Stock Purchase agreement’s

designation of a sum as a “capital contribution”); Spector v. Comm’r, 641 F.2d

376, 383-86 (5th Cir. Unit A Apr. 1981) (applying Danielson rule to conclude that

a buy-out agreement carefully and intentionally structured as a liquidation was a

“liquidation,” as opposed to “sale” subject to capital-gains tax). 44 We’ve also

added our own gloss to the rule, explaining that “[w]hen a taxpayer characterizes a

transaction in a certain form, the Commissioner may bind the taxpayer to that form

for tax purposes.” Plante, 168 F.3d at 1280.

Here, the Majority asserts that Peterson is bound by the Danielson rule

because she “consented” to the characterization of Program Payments as “deferred

compensation.” Maj Op. at 36-41; see also id. at 39 n.29. But Peterson never

44 Pursuant to Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), opinions of the Fifth Circuit issued prior to October 1, 1981, are binding precedent in the Eleventh Circuit.

57 Case: 14-15774 Date Filed: 05/24/2016 Page: 58 of 87

consented to Mary Kay’s characterization in such a way that she could herself be

said to have characterized the Program payments in the Danielson sense.

Instead, Peterson entered into agreements to enroll in the Family Program in

1992 and the Futures Program in 2005, both of which contained provisions

permitting Mary Kay to later unilaterally “amend, modify or terminate” the

Programs “at any time and in any manner.”

Years later, Mary Kay exercised that authority by “amending” the

agreements to characterize the Program payments as “a non-qualified deferred

compensation arrangement” intended to meet the requirements of a non-qualified

compensation plan under Section 409A of the I.R.C. 45 According to the Majority,

45 The amendments became effective December 1, 2008, one month before Peterson retired, approximately sixteen years after Peterson executed the Family Program agreement, and three years after she executed the Futures Program agreement. In relevant part, the 2008 Amendments read,

“Section 10.9 is added to specifically reflect compliance with Section 409(A) of the Internal Revenue Code:”

Internal Revenue Code Status. The Program [Plan] is intended to be a non- qualified deferred compensation arrangement and is not intended to meet the requirements of Section 401(a) of the Code. The Program [Plan] is intended to meet the requirements of Section 409A of the Code and shall be construed and interpreted in accordance with such intent. No person connected with the Program [Plan] in any capacity, including but not limited to [Mary Kay] and any affiliates of [Mary Kay] and their respective directors, officers, agents and employees, makes any representation, commitment or guarantee that any tax treatment, including but not limited to federal, state and local income, estate, and gift tax treatment, will be applicable with respect to any amounts deferred or payable under the Program [Plan] or that such tax treatment will apply to or be available to a Participant on account of participation in the Program [Plan].45

Mary Kay Amend. No. 1 § 10.9, Family Program & Futures Program. 58 Case: 14-15774 Date Filed: 05/24/2016 Page: 59 of 87

Peterson “consented” to Mary Kay’s unilateral characterization of Program

payments as “deferred compensation” in the sense that she had previously

consented to Mary Kay’s authority to unilaterally amend the Programs. The

Commissioner argues, and the Majority agrees, that Peterson is therefore

prohibited from challenging the “deferred compensation” characterization by the

Danielson rule.

I respectfully disagree. To be clear, I do not, as the Majority suggests,

dispute that Peterson consented to Mary Kay’s amendment of the Agreements to

include the language in the 2008 Amendments as a matter of contract law. See

Maj. Op. at 39 n.29. Rather, I take issue with the Majority’s second-order

conclusion that Peterson’s consent to unilateral amendments to the Programs

somehow permitted Mary Kay to bind Peterson to its post-hoc characterization of

the Program payments for purposes of applying the judicially crafted Danielson

rule. Indeed, the Amendments did not purport to amend the Programs

substantively but instead to simply characterize the Programs as they existed

before the Amendments.

As an initial matter, no court, to my knowledge, has applied the Danielson

rule to bind a taxpayer to her counterparty’s ex post facto, unilateral

characterization of a transaction. Neither the Majority nor the Commissioner

points to any such authority. Instead, the cases applying the Danielson rule have

59 Case: 14-15774 Date Filed: 05/24/2016 Page: 60 of 87

done so where the taxpayer herself either (1) executed a document at the time of

the transaction explicitly characterizing a transaction in a particular form; 46 or (2)

intentionally structured a transaction in a particular form for tax purposes.47

Indeed, one of our sister circuits has held that the Danielson rule cannot be

“meaningfully applied” in cases where the transacting parties did not mutually and

specifically agree to a particular term in a contract. See Patterson v. Comm’r, 810

F.2d 562, 572 (6th Cir. 1987). In sum, I have not been able to find any direct

support, in this Circuit or anywhere else, for the Majority’s application of the

Danielson rule to bind Peterson to Mary Kay’s post-consummation, unilateral

characterization of the Program agreements.

Nor should the Danielson rule apply in this case. The Danielson rule serves

two purposes, neither of which is vindicated by the Majority’s decision. First, the

rule seeks to prevent a party from unjustly enriching itself by unilaterally altering

the intended tax consequences of a transaction after consummation. See

Danielson, 378 F.2d at 775. The Danielson Court explained as follows:

46 See, e.g., Plante, 168 F.3d at 1281 (applying the Danielson rule where taxpayer executed stock purchase agreement explicitly characterizing a sum as a “capital contribution”); Bradley v. United States, 730 F.2d 718, 720 (11th Cir. 1984) (applying the Danielson rule where taxpayer executed a sale agreement and later attempted to argue that the transaction was not “sale” but an “option” agreement); Danielson, 378 F.2d at 771 (taxpayers signed sales agreement explicitly allocating portions of the proceeds of a sale to a covenant not to compete). 47 See, Spector, 641 F.2d at 383-86 (Danielson rule precluded a taxpayer from arguing that a transaction was a “sale” where the taxpayer intentionally structured the transaction as a “liquidation” for tax purposes). 60 Case: 14-15774 Date Filed: 05/24/2016 Page: 61 of 87

[T]o permit a party to an agreement . . . to attack [a] provision for tax purposes, absent proof of the type which would negate it in an action between the parties, would be in effect to grant, at the instance of a party, a unilateral reformation of the contract with a resulting unjust enrichment. If allowed, such an attach [sic] would encourage parties unjustifiably to risk litigation after consummation of a transaction in order to avoid the tax consequences of their agreements. And to go behind the agreement at the behest of a party may also permit a party to an admittedly valid agreement to use the tax laws to obtain relief from an unfavorable agreement.

Of vital importance, such attacks would nullify the reasonably predictable tax consequences of the agreement to the other party thereto. Here the buyer would be forced to defend the agreement in order to amortize the amount allocated to the covenant. If unsuccessful, the buyer would lose a tax advantage it had paid the selling-taxpayers to acquire. In the future buyers would be unwilling to pay sellers for tax savings so unlikely to materialize.

Id. Thus, the first purpose of permitting the Commissioner to bind a taxpayer to

the form in which she initially characterized a transaction is to prevent unilateral,

ex post facto contract revisions. As a result, the rule discourages parties from

risking litigation by attempting to unilaterally reform their agreements post-

consummation, and it ensures that future parties can reliably allocate the tax

consequences of their transactions.

The Danielson rule also serves as a prophylactic to prevent the

Commissioner from pursuing unnecessary “whipsaw” litigation. See id. at 775;

Plante, 168 F.3d at 1281. If two taxpayers adopt divergent characterizations of the 61 Case: 14-15774 Date Filed: 05/24/2016 Page: 62 of 87

proceeds of a single transaction, the Commissioner faces the possibility of

“los[ing] out on revenue that logically should have come from one of the parties.”

N. Am. Rayon Corp. v. Comm’r, 12 F.3d 583, 587 (6th Cir. 1993). In these

instances, the Commissioner is “confronted with the necessity for litigation against

both buyer and seller in order to collect taxes properly due.” Danielson, 378 F.2d

at 775. So we’ve explained that the second purpose of binding taxpayers to their

characterizations of their transactions under the Danielson rule “is to prevent the

IRS from being ‘whipsawed’: litigating against two parties . . . to collect tax from

only one party.” Plante, 168 F3d at 1281.

Applying the rule here stands the first purpose for which the rule was

formulated on its head. Peterson, the taxpayer, made no attempt to alter the

express terms of the transaction that she and Mary Kay agreed to at formation; she

merely seeks review and enforcement of the terms of the Programs themselves.

Only Mary Kay has arguably attempted to alter the tax consequences flowing from

the substantive terms of the Programs to which the parties agreed.

In these circumstances, applying the Danielson rule does not prevent a

unilateral, post-consummation contract reformation. Instead, the Majority’s

application of the rule insulates Mary Kay’s unilateral, ex post

facto characterization of the Program payments from meaningful review. As a

result, today’s decision encourages parties to risk litigation by attempting

62 Case: 14-15774 Date Filed: 05/24/2016 Page: 63 of 87

unilateral, post-consummation contract reformations to avoid the tax consequences

of their transactions. Another result of today’s decision is that parties will be less

certain about the tax consequences of a transaction where the agreement contains a

unilateral amendment provision—whichever party has the power to amend the

agreement will be able to alter those consequences by simply re-characterizing the

transaction after consummation.

As a result, the Majority’s application of the Danielson rule here conflicts

with the first purpose the rule was meant to serve. See Danielson, 378 F.2d at 775.

The only way for us to vindicate the first purpose of the Danielson rule in cases

like this one is to set aside the Danielson rule and look through to the economic

realities of the transaction. 48

Nor does applying the Danielson rule in this case vindicate the rule’s second

purpose of preventing unnecessary whipsaw litigation. The Danielson rule was

never intended to entirely eliminate the need for the Commissioner to ever pursue

48 Responding to this point, the Majority contends that this case does not implicate the first purpose of the Danielson rule—preventing parties from unjustly enriching themselves by preventing them from re-characterizing transactions ex post facto—because Mary Kay did not seek to unjustly enrich itself. Maj. Op. at 41 n.31. As an initial matter, I respectfully suggest that the Majority’s conclusion that the first purpose of the Danielson rule is not implicated in this case, whatever the reasoning, counsels against applying the Danielson rule at all. But in any event, the Majority does not focus on the right party. The Commissioner here is trying to collect taxes from Peterson, not Mary Kay. Thus, the Danielson concern here is whether Peterson, not Mary Kay, is attempting to unjustly enrich herself. In other words, the purpose of applying the Danielson rule in this case would be to ensure that Peterson does not unfairly shift tax liability to Mary Kay via a post-hoc re-characterization of their transaction. I only suggest that applying the Danielson rule here might permit Mary Kay to unjustly enrich itself to underscore my broader point that applying the Danielson rule in circumstances like these actually incentivizes parties to engage in the very post-hoc-tax-liability shifting the rule is meant to guard against. 63 Case: 14-15774 Date Filed: 05/24/2016 Page: 64 of 87

litigation against both parties to an agreement, as evidenced by the rule’s own

carve-out for cases where a taxpayer “adduc[es] proof which in an action between

the parties to the agreement would be admissible to alter [the Commissioner’s]

construction or to show its unenforceability because of mistake, undue influence,

fraud, duress, etc.” Danielson, 378 F.2d at 775.

Instead, the rule eliminates the need for the Commissioner to pursue

litigation against both parties in a very particular set of cases. Where a taxpayer

initially agrees to an express contractual characterization or form and later attempts

to re-characterize the term or form, the Danielson rule acts as a prophylactic to

prevent the IRS from having to pursue the taxpayer’s counterparty out of a concern

that a court will agree with the taxpayer’s ex post facto re-characterization. See

Plante, 168 F.3d at 1281-82 (the Danielson rule prevents the IRS from having to

pursue whipsaw litigation by preventing a party from “alter[ing] the express terms

of his contract by arguing that the terms did not represent economic reality”

(emphasis added)); see also Patterson, 810 F.2d at 572 (“The Danielson rule can

only be meaningfully applied in those cases where a specific amount has been

mutually allocated to the covenant as expressed in the contract.” (emphasis

added)).

The Danielson rule, however, has no application in cases where, as here, the

taxpayer does not seek to avoid an express contractual term or form. See Plante,

64 Case: 14-15774 Date Filed: 05/24/2016 Page: 65 of 87

168 F.3d at 1282; Patterson, 810 F.2d at 572. In these cases, the Commissioner

must resort to litigating the tax deficiency on the merits and, if need be,

“assert[ing] inconsistent positions and . . . assess[ing] deficiencies against more

than one person for the same tax liability if there is an accepted legal basis for each

assertion.” Gerardo v. Comm’r, 552 F.2d 549, 555 (3d Cir. 1977). In other words,

the Commissioner must go ahead and pursue whipsaw litigation. Indeed, the

reason courts permit the Commissioner to pursue whipsaw litigation is to protect

the public fisc from any whipsaw effect in cases where “there is an accepted legal

basis” for asserting a single tax deficiency against multiple parties. Id.; see also

Bouterie v. Comm’r, 36 F.3d 1361, 1374 (5th Cir. 1994) (holding that, when the

IRS asserts a single tax deficiency against multiple parties, each assertion “must

have a reasonable basis in fact and law”). In other words, courts permit the

Commissioner to pursue whipsaw litigation precisely because sometimes, as here,

more than one party is arguably liable for a single tax deficiency.

Here, Peterson never expressly agreed to a characterization of the Program

payments as “deferred compensation” in the Danielson sense. Instead, as the

Commissioner implicitly acknowledges, there is a reasonable legal basis to

conclude that Program payments are either (1) deferred compensation, in which

case Peterson is liable for the tax deficiency; or (2) payments for a covenant not to

compete, in which case Mary Kay would be responsible for incorrectly deducting

65 Case: 14-15774 Date Filed: 05/24/2016 Page: 66 of 87

the payments on its tax returns. In these circumstances, I would hold that the

Commissioner may not rely on the Danielson rule in lieu of pursuing actual

whipsaw litigation to resolve a genuine dispute about whether Peterson or Mary

Kay is responsible for the tax deficiency at issue. The Majority’s contrary

conclusion, in my opinion, does not vindicate the rule’s prophylactic purpose of

preventing unnecessary whipsaw litigation; it prevents necessary whipsaw

litigation. 49

In sum, I could find no precedential support for the application of the

Danielson rule in cases, such as this one, where a taxpayer did not expressly agree

49 The Majority responds that “[b]ecause the IRS seeks tax[es] from the Petersons solely, its being ‘whipsawed’ is not an issue in this case.” Maj. Op. at 39 n.29. If the anti-whipsaw concern underlying the Danielson rule is not implicated here, whatever the reasoning, that counsels against applying the Danielson rule at all. In any event, I respectfully disagree that this case presents no whipsaw concerns. “Whipsaw” is a concern whenever more than one party is arguably liable for a single tax deficiency—if each taxpayer contends that he or she is not liable for the deficiency, the IRS may be forced to pursue both parties in court to recover a single deficiency. Here, Peterson and Mary Kay have adopted divergent characterizations of the Program payments and, as I noted, the IRS has conceded that each could arguably be liable for the single tax deficiency depending on the appropriate characterization of the payments. Thus, a concern exists that the IRS could be whipsawed by Peterson and Mary Kay’s divergent characterizations of the payments. My point is that the whipsaw concern here is materially different than the one the Danielson rule was crafted to address. The Danielson rule seeks to nip unnecessary whipsaw litigation in the bud by holding parties to their initial, agreed-upon characterization of transactions. In other words, the Danielson rule was designed to prevent parties from whipsawing the IRS by adopting divergent characterizations of transactions when they initially agreed to a particular characterization. Here, however, Peterson and Mary Kay never agreed to Mary Kay’s “deferred compensation” characterization at the outset. Instead, Mary Kay unilaterally characterized the Program payments years after the transaction was consummated via the unilateral amendment provisions in the Program agreements. We should not apply the Danielson rule and permit the Commissioner to bind Peterson to Mary Kay’s ex post facto re-characterization because Peterson is not attempting to pull a fast one on the IRS by backtracking on an initial, mutual characterization of the payments.

66 Case: 14-15774 Date Filed: 05/24/2016 Page: 67 of 87

to a particular characterization or contractual form at the time of a transaction. Nor

do the purposes of the Danielson rule support the expansion of the rule to cover

such cases. For these reasons, I respectfully disagree with the Majority’s

application of the Danielson rule in this case and would hold that Peterson is not

bound by Mary Kay’s unilateral, ex post facto characterization of Program

payments as “deferred compensation.”50

B.

Just because the Danielson rule does not apply, however, does not

necessarily mean that the payments are not “deferred compensation,” and thus

subject to the self-employment tax. Instead, when the Danielson rule is

inapplicable, we look to the substance of the transaction to determine its nature.

See, e.g., Plante, 168 F.3d at 1280 (noting that, were the Danielson rule

50 The Majority contends that we are bound to apply the Danielson rule under Spector v. Commissioner of Internal Revenue, 641 F.2d 376, 383-86 (5th Cir. Unit A Apr. 1981), Bradley v. United States, 730 F.2d 718, 720 (11th Cir. 1984), and Plante v. Commissioner of Internal Revenue, 168 F.3d at 1280-81; and that any decision not to apply the Danielson rule would violate the prior-precedent rule. Maj. Op. at 40 n.30. In making this point, the Majority appears to misunderstand my argument, framing my argument as premised on the proposition that we need not apply prior precedent any time the facts of a new case are not identical to those of a prior case. Id. To be clear, that is not my position. Rather, my point is that the facts of Spector, Bradley, Plante, and every other case applying the Danielson rule, including Danielson itself, are not just different from the facts here, they are materially distinguishable: in each of those cases, the taxpayer herself either (1) executed a document at the time of the transaction explicitly characterizing a transaction in a particular form; or (2) intentionally structured a transaction in a particular form for tax purposes. See supra pp. 7-8. Here, Peterson did neither. And, as I described above, applying the Danielson rule on the facts of this case disserves the two purposes of the rule. Declining to apply the Danielson rule in this case, therefore, would not violate the prior-precedent rule. Instead, it would merely recognize that the Danielson rule has not been applied, and should not be applied, in the materially distinguishable situation where a taxpayer’s counterparty ex post facto unilaterally characterizes a transaction to its benefit. 67 Case: 14-15774 Date Filed: 05/24/2016 Page: 68 of 87

inapplicable, we would apply a 13-factor test to determine whether a sum is a loan

or a capital contribution).

In Jackson v. Commissioner, 108 T.C. 130 (1997), the Tax Court

summarized what a traditional deferred-compensation agreement looks like. It

stated,

In a typical deferred compensation arrangement, an employee wants to postpone receiving a portion of the income to which he or she is entitled with the understanding that the income will be paid at a later time, usually upon retirement or other termination. In these cases the employee chose to receive less than his or her agreed compensation when earned with the understanding that it would be paid out at some later time. The employer ordinarily contributes the amount designated by the employee to a fund established for that purpose.

Id. at 137 (internal citations omitted).

Our sister circuits have provided additional guidance on the deferred-

compensation inquiry. For instance, in Gump v. United States, the Federal Circuit

held that the extended earnings an insurance salesman received after retirement

were not deferred compensation. 86 F.3d 1126, 1128-29 (Fed. Cir. 1996). The

Federal Circuit rested its conclusion on the following facts: the salesman received

all of the commissions he was entitled to prior to receiving the extended earnings;

the extended earnings were “not derived by holding back a portion of [the

salesman]’s salary”; and disbursement of the extended earnings was conditioned

68 Case: 14-15774 Date Filed: 05/24/2016 Page: 69 of 87

on the salesman’s qualified cancellation of his insurance relationships such that he

had no vested right to receive the extended earnings. Id. Likewise, in Milligan v.

Commissioner, the Ninth Circuit held that payments made to a retired insurance

salesman were not deferred compensation because “none of [the salesman]’s

earnings were deferred, i.e., he had no vested right to payment of an identifiable

money amount.” 38 F.3d 1094, 1099 (9th Cir. 1994).

Guided by Jackson, Gump, and Milligan, I would hold that the Program

payments Peterson received were not “deferred compensation” for three reasons.

First, Peterson was never asked to defer any portion of her income until a later

date. Second, before Peterson’s retirement, Mary Kay fully compensated Peterson

for all of the commissions she was entitled to receive under her NSD agreement.

Third, Peterson had no vested right to the Program payments. Instead, they were

conditioned on Peterson’s compliance with contemporaneous and future

obligations, more specifically, the covenant not to compete. Additionally, as

discussed above, both Program agreements contained a unilateral-amendment

provision permitting Mary Kay to “amend, modify or terminate the Plans at any

time and in any manner.” I have found no constraint in the agreements prohibiting

Mary Kay from reducing the Program payments at any time.

Distinguishing the insurance cases, the Majority suggests that the payments

here would be deferred compensation even on the merits because, unlike insurance

69 Case: 14-15774 Date Filed: 05/24/2016 Page: 70 of 87

agents who work by themselves, NSDs “lead and train their ever increasing

networks, whose sales generate the NSDs’ commissions before and after their

retirement.” Maj. Op. at 47-48. But in Milligan, the Ninth Circuit held that the

extended earnings payments were not deferred compensation despite the fact that

the employer could adjust the payments and “[t]he adjusted payment amount

depended not upon Milligan’s past business activity, but upon the successor

agent’s future business efforts to retain Milligan’s customers.” 38 F.3d at 1099.

Moreover, as the Majority recognizes, NSDs are compensated through

commissions on their networks’ sales. NSDs are not directly compensated for

leading and training their networks. Even if an NSD provided her network with

top-notch training and leadership, she would still receive no compensation if the

network did not sell any Mary Kay products. Thus, payments based on

commissions generated after an NSD retires cannot be deferred compensation for

prior leadership and training—NSDs like Peterson were never compensated for

those responsibilities, before or after retirement.

Because the facts here are materially indistinguishable from those in

Jackson, Gump, and Milligan, I would hold that Peterson’s Program payments are

not “deferred compensation,” and thus not subject to the self-employment tax on

this basis.

70 Case: 14-15774 Date Filed: 05/24/2016 Page: 71 of 87

II.

Even though I would conclude that the Program payments are not “deferred

compensation,” that would not conclusively establish that the Program payments

are not subject to the self-employment tax. Other types of income may still be

subject to the tax, so long as they “derive from a trade or business.” See 26 U.S.C.

§ 1402(a)-(b). Income “derives from a trade or business” whenever there is “a

nexus between the income received and a trade or business that is, or was, actually

carried on.” Newberry v. Comm’r, 76 T.C. 441, 444 (1981). Where income does

not meet the nexus test but instead derives from a former employee’s compliance

with a covenant not to compete, it is not subject to the self-employment tax.

Milligan, 38 F.3d at 1098 n.6.

Three of our sister circuits’ decisions illuminate the nature of the Newberry

nexus inquiry. First, in Milligan, the Ninth Circuit analyzed the nexus issue with

regard to “termination payments” made to Milligan, a retired insurance sales agent.

38 F.3d at 1098. Milligan and his employer entered into an agreement that

provided for termination payments, the amount of which were based on a

percentage of Milligan’s outstanding policies in the twelve months preceding his

retirement. Id. at 1096. Under the agreement, Milligan was eligible to receive

termination payments for five years only if he had worked as an agent for at least

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two years, returned all employer-owned property, and refrained from competition

with his employer for one year. Id.

On these facts, the Ninth Circuit held that the termination payments were not

subject to the self-employment tax because they did not “derive” from Milligan’s

prior business activity. Id. at 1098. The Ninth Circuit reasoned, “To be taxable as

self-employment income, earnings must be tied to the quantity or quality of the

taxpayer’s prior labor, rather than the mere fact that the taxpayer worked or works

for the payor.” Id. (emphasis added). As noted above, the Ninth Circuit first

concluded that the payments were not deferred compensation. Id. at 1099.

Nor, the Ninth Circuit held, did the payments otherwise “derive” from

Milligan’s prior business activity. The Milligan Court observed that the only link

between the quantity or quality of the agent’s prior labor and the payments at issue

was Milligan’s status as a two-year-plus independent contractor. Id. That link on

its own, the court held, was insufficient to satisfy the “derive” requirement. Id.

The Court explained that “[i]t is not enough that, had the taxpayer not performed

certain services (that were fully compensated for)—not been an independent

contractor, for example—the taxpayer never would have received the disputed

payments.” Id.

Notably, even though the amount of the payments was partially tied to

Milligan’s prior labor, the Ninth Circuit held that the termination payments were

72 Case: 14-15774 Date Filed: 05/24/2016 Page: 73 of 87

not tied to the quantity or quality of Milligan’s prior labor because the amount of

the payments was also subject to two adjustments that did not depend on

Milligan’s prior labor.

At most, the amount of the Termination Payments, not the payments themselves, actually arose from Milligan’s business activity. Milligan had a contingent right to receive an uncertain amount of money or nothing, depending upon the level of his prior business activity leading to compensation in his final year as an agent. The payment amount depended upon the level of his commissions . . . . on personally-produced policies, i.e., his previous value as a[n] . . . insurance agent.

However, in part, even the payment amount did not depend upon the level of Milligan’s prior business activity because the Termination Payments were subject to two adjustments unrelated to any business activity on Milligan’s part for [the employer]. The [employer] adjusted the Termination Payments to reflect the amount of income received on Milligan’s book of business during the first post-termination year, and the number of his personally-produced policies cancelled during that year. If all of Milligan’s customers had cancelled their . . . non-life policies during the first post-termination year, then Milligan would have received nothing. The adjusted payment amount depended not upon Milligan’s past business activity, but upon the successor agent’s future business efforts to retain Milligan’s customers and to generate service compensation for [the employer]. In this way too, the disputed Termination Payments did not “derive” from Milligan’s prior services.

Id.

Similarly, in Gump, the Federal Circuit held that the monthly “extended

earnings” payments Gump, a retired insurance agent, received from his former 73 Case: 14-15774 Date Filed: 05/24/2016 Page: 74 of 87

employer did not meet the Newberry nexus test and were therefore not subject to

the self-employment tax. 86 F.3d at 1127. There, Gump was entitled to receive

extended earnings if he worked for the employer for at least five years. Id. The

extended-earnings payments were “calculated by reference to the agent’s policy

renewal fees for his last twelve months of service, subject to certain adjustments.”

Id. Like the Milligan Court, the Federal Circuit held that the extended-earnings

payments were not “deferred compensation.” Id. at 1128-29. In addition, the

Federal Circuit relied on several significant facts to conclude that the extended

earnings were not otherwise “derived” from the Gump’s former business activity.

First, the right to receive extended earnings was conditioned upon the

cessation of business activity; that is, cessation was “not just a condition that [had

to] be observed to preserve [Gump’s] eligibility for the [payments]; it [was] a

precondition to receiving them.” Id. at 1128. The court reasoned that the

payments did not arise or derive from the trade or business, but more accurately

derived from the cancellation of that trade or business. Id. Thus, the fact that the

payments, in a sense, were “rooted in” Gump’s employment agreement with his

former employer was not enough to establish the requisite nexus. Id.

Second, even though the amount of Gump’s extended-earnings payments

was tied to the level of renewal commissions generated by Gump in the last twelve

months of his employment, that fact alone was insufficient to demonstrate that the

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extended payments were tied to the quantity or quality of the Gump’s service. Id.

at 1129. The Federal Circuit reasoned that “the renewal commissions generated in

Gump’s last year determine[d] the amount of the extended earnings payment,

subject to adjustment, not the right to it”; thus, “[t]he only significance that [could]

properly be attached to this amount [was] that it was used as a benchmark to

determine how much he would receive if he complied with the agreement.” Id.

The Federal Circuit also noted that Gump’s right to the extended earnings

was not dependent his final twelve months of labor because even if he had lost all

of his customers, he would have been entitled to the payments (though, under the

benchmark, he would have received no money). Id. at 1130. In contrast, had

Gump not complied with other contractual requirements, by, for example, failing

to return his employer’s property at the end of his employment, he would not have

been entitled to any extended earnings. Id. The Federal Circuit held that the

amount of the extended earnings was therefore “not tied to the quantity or quality

of [Gump’s] labor in any meaningful way.” Id. (internal quotation marks omitted).

Third, the court in Gump relied in part on the fact that the payments were

subject to adjustments unrelated to the Gump’s previous business activities.

Notably, the employer “could make deductions from the payments if certain large

commercial policies were cancelled in the year following [Gump’s] last year of

75 Case: 14-15774 Date Filed: 05/24/2016 Page: 76 of 87

service. This adjustment in the amount he [c]ould receive [wa]s unrelated to the

actual quantity or quality of his labor.” Id. at 1128-29.

In Schelble v. Commissioner, the Tenth Circuit also addressed whether the

termination payments received by an insurance agent, Schelble, “derived” from his

prior business activity. 130 F.3d 1388 (10th Cir. 1997). The court held that,

unlike the payments in Milligan and Gump, Schelble’s termination payments did

“derive” from his prior labor under the “quantity or quality” test. Id. at 1394. The

court distinguished the termination payments Schelble received from those

Milligan and Gump received, reasoning,

Although the payments in Milligan and Mr. Schelble’s payments have similar eligibility requirements such as (1) a minimum [yearly] service requirement; (2) relinquishment of company records and policies; and (3) a covenant not to compete, Mr. Schelble’s payments have distinguishing features related to Mr. Schelble’s prior services. For example, unlike the plan in Milligan, Mr. Schelble must have 400 outstanding policies at his termination to be eligible for extended earnings payments. In addition, in contrast to Milligan, the amount of Mr. Schelble’s payments was computed based on Mr. Schelble’s length of service for the Companies. As an agent for the Companies for over fifteen years, Mr. Schelble’s extended earnings payments were calculated using a higher percentage than if he had only been an agent for five or ten years. Furthermore, unlike the payments in Milligan, Mr. Schelble’s . . . payments were calculated solely on the percentage applied to service fees paid to him during the twelve months preceding the Agreement’s termination. No adjustments unrelated to Mr. Schelble’s prior services were made in calculating these payments. Based on these distinguishing factors, 76 Case: 14-15774 Date Filed: 05/24/2016 Page: 77 of 87

we conclude Mr. Schelble’s payments are sufficiently derived from his prior insurance business to constitute self-employment income subject to self-employment tax under 26 U.S.C. § 1401.

Mr. Schelble also relies on Gump . . . . However, the payment scheme in Gump is nearly identical to that in Milligan and distinguishable from Mr. Schelble’s payment scheme. For the same reasons we reject Milligan, we also find Gump does not apply Mr. Schelble’s case.

Id. at 1393-94 (internal citation omitted).

Applying the Newberry test to Schelble’s payments, the Tenth Circuit held

that a nexus existed between Schelble’s termination payments and his prior labor.

Id. at 1394. The Court first conceded that, as Schelble argued, the payments arose

from the cessation of his employment, not his prior labor. Id. But it concluded

that there was “[n]evertheless” a nexus because “the right to and amount of

payments are tied to the quantity of policies sold for the [employer], the length of

Mr. Schelble’s prior service and the amount of his prior commissions.” Id.

The Majority contends that Milligan, Gump, and Schelble are inapposite

because all three cases involve insurance agents and are therefore distinguishable

on four bases. Maj. Op. at 46-48. First, the Majority observes that, unlike sales of

Mary Kay’s cosmetic products, insurance policies have to be renewed. Id. at 47.

Second, the Majority notes that the calculation of post-retirement benefits for

insurance salesmen is based on methods and concepts that are germane to the

77 Case: 14-15774 Date Filed: 05/24/2016 Page: 78 of 87

insurance business. Third, the Majority suggests that, unlike in the insurance

cases, the Program payments here are deferred compensation on the merits. Id. at

47. Fourth, the Majority notes that the Mary Kay Programs “are one of a kind”

and “unique.” Id. at 48. In support of this last contention, the Majority observes

that one distinction between Mary Kay’s Futures Program and the insurance cases

is that the insurance cases “do not involve sales networks in foreign countries.” Id.

at 51 n.43.

I agree with the Majority that these are distinctions between the insurance

cases and Peterson’s case. But I respectfully disagree that these distinctions render

Milligan, Gump, and Schelble inapposite. The courts in Milligan, Gump, and

Schelble did not explicitly purport to limit their holdings to insurance cases; nor

does anything in their analyses suggest that their reasoning is limited to cases

involving insurance agents. Instead, each court started with the language of 26

U.S.C. § 1402(a)-(b), recognized the continuing vitality of Newberry (a case

involving insurance proceeds, but not retired insurance agents), and applied the test

to the post-retirement payments at issue. See Schelble, 130 F.3d at 1391-94;

Gump, 86 F.3d at 1127-30; Milligan, 38 F.3d at 1097-1100.

Nor is it clear to me why the distinctions highlighted by the Majority would

alter the applicability of these decisions. The fact that insurance contracts have to

be renewed unlike the fungible products sold by Mary Kay suggests only that

78 Case: 14-15774 Date Filed: 05/24/2016 Page: 79 of 87

insurance companies do not need their customers to affirmatively “re-up” as

frequently. To the extent that the Majority means to suggest that the renewable

contracts indicate that there is a difference in kind between (a) the relationship of a

retired insurance agent to his former customers and employer, and (b) the

relationship of a retired NSD to her former network and Mary Kay, I do not see a

meaningful difference or how any difference would impact our post-retirement

payment analysis.

I also do not think that it matters that insurance companies calculate post-

retirement payments to former insurance agents using methods and concepts

germane to the insurance industry. As described above, the Newberry nexus

analyses in Milligan, Gump, and Schelble turn on whether the payments at issue

are “deferred compensation”; whether the payments are for the cessation of

business; whether the payments are subject to adjustments unrelated to the former

employee’s prior labor; whether eligibility for the payments and the determination

of the amount of the payments are related to the quantity of the former employees’

work, beyond a requirement that the employee have worked some number of years

in order to receive the payments; and whether the amount of the payments is

dependent on the labor of employees that succeeded the former employee or on the

employee’s own labor. See Schelble, 130 F.3d at 1391-94; Gump, 86 F.3d at 1127-

79 Case: 14-15774 Date Filed: 05/24/2016 Page: 80 of 87

30; Milligan, 38 F.3d at 1097-1100. As it turns out, all of these inquiries have

meaningful application in the context of this case as well.

To the Majority’s suggestion that the payments here are deferred

compensation, unlike the payments in the insurance cases, I respectfully disagree

for the reasons described above. See supra at pp. 15-17. And, respectfully, the

Majority’s fourth distinction—that the Mary Kay Programs are one of a kind

because, among other things, they involve sales networks in foreign countries—

does not necessarily make them insusceptible to the general analytical framework

deployed in Milligan, Gump, and Schelble.

Notably, the Majority itself relies on an insurance case. The Majority cites

Erickson v. Commissioner, T.C. Memo. 1992-585 (1992), for the proposition that

“[p]ayments with the same character as prior commissions constitute income

derived from a petitioner’s self-employment.” Maj. Op. at 45. I disagree with the

Majority’s gloss on the holding in Erickson—there, unlike the payments in

Milligan and Gump, the post-termination payments were directly tied to both the

quantity and quality of the former agent’s labor, with a guarantee that the payments

could not fall below a certain percentage. See Erickson, T.C. Memo 1992-585, at

*1. But, more importantly, either cases involving insurance agents are or are not,

as a class, inapplicable to non-insurance cases.

80 Case: 14-15774 Date Filed: 05/24/2016 Page: 81 of 87

Guided by Milligan, Gump, and Schelble, I would conclude that a nexus

exists between the Family Program payments and Peterson’s prior Mary Kay labor,

but not with respect to the Futures Program payments. Here, payments under both

Programs are tied to the cessation of Peterson’s prior Mary Kay labor. In order to

receive payments under the Programs, Peterson was required not to compete with

Mary Kay. This counsels in favor of holding that the payments are not derived

from Peterson’s prior labor. See Milligan 38 F.3d at 1098 n. 6 (observing that

payments derived from an employee’s cessation of labor and compliance with a

non-competition covenant do not meet the nexus test); see also Gump, 86 F.3d at

1128 (payments derived from a former employee’s cessation of labor are not

derived from the employee’s former labor even where the payments are “rooted in”

the employee’s former employment agreement). But it is not dispositive of the

“quality or quantity” nexus inquiry. See Schelble, 130 F.3d at 1394.

As for the quantity inquiry, I would hold that the payments under both

Programs are tied to the quantity of an NSD’s service, but only in the threshold

status sense that the Milligan court found insufficient, on its own, to establish that

payments necessarily “derive” from a taxpayer’s prior labor. To be eligible for

payments under both Programs, an individual must have served as an NSD for at

least 5 years prior to her retirement. If an NSD serves for 15 years prior to

retirement, she is eligible to receive payments at a rate of 60%, regardless of her

81 Case: 14-15774 Date Filed: 05/24/2016 Page: 82 of 87

age at retirement. If, however, an NSD retires prior to serving 15 years, the

percentage of commissions she receives is based upon her age at retirement,

varying from a 40% rate at age 55 to a 60% rate at age 65. Once an NSD reaches

age 65, she will receive payments at the 60%, regardless of whether she served for

5 or 25 years. In sum, an NSD’s eligibility for receiving Program payments at a

particular rate is dependent on her status as either (1) having served at least 5 years

and attained the age of 55; or (2) having served 15 years.

These eligibility requirements are akin to the two-year-plus status

requirement that the Milligan Court found insufficient to satisfy the nexus test on

its own. 38 F.3d at 1098. I agree with the Milligan Court that, without more, this

type of “link between the disputed payments and any business activity carried on . .

. does not satisfy the ‘derive’ requirement.” Id. As the court in Milligan

explained, “It is not enough that, had the taxpayer not performed certain services

(that were fully compensated for) . . . the taxpayer never would have received the

disputed payments.” Id. Here, the requirements that an NSD perform Mary Kay

services for 5 years and reach 55 years of age, or serve as an NSD for 15 years, are

threshold eligibility requirements for Program payments. Those status

requirements indicate only that the NSD performed services, fully compensated for

at the time, sufficient to receive the disputed payments. Therefore, while I would

conclude that a relationship exists between the quantity of Peterson’s prior labor

82 Case: 14-15774 Date Filed: 05/24/2016 Page: 83 of 87

and the Program payments, that relationship, on its own, does not satisfy the

Newberry nexus test.

But I would hold that the Family Program payments still meet the nexus test

because the amount of payments Peterson received under the Family Program was

directly tied to the quality of her Mary Kay labor. The amount Peterson received

under the Family Program payments was equal to 60% of the average of her annual

commissions for the three years in which she had the highest commissions among

the five years preceding her retirement. Like the payments in Schelble and unlike

the payments in Milligan and Gump, this amount was not subject to any

adjustments, let alone adjustments unrelated to Peterson’s prior labor. Schelble,

130 F.3d at 1393; Gump, 86 F.3d at 1128-29; Milligan, 38 F.3d at 1099. Because

the amount of the Family Program payments were not subject to any adjustments,

Peterson’s labor during her three highest commission years in the last five years of

service cannot be considered a benchmark akin to Gump’s final twelve months of

service—the quality of Peterson’s labor is determinative of the amount of her

payments. Cf. Gump, 86 F.3d at 1129-30. As a result, the amount of the payments

Peterson received under the Family Program was entirely dependent on the quality

of her prior Mary Kay labor.

In contrast, I would hold that the Futures Program payments do not meet the

nexus test because the amount of the payments Peterson received under the Futures

83 Case: 14-15774 Date Filed: 05/24/2016 Page: 84 of 87

Program is entirely independent of the quality of her prior Mary Kay labor. Under

the Futures Program, Peterson is entitled to receive 60% of the commissions she

would have received on wholesale purchases of Mary Kay products by individuals

in her network located outside the United States. In other words, the amount of

Futures Program payments Peterson is entitled to receive is entirely dependent on

the quality of other, non-retired Mary Kay laborers.

The Commissioner argues that the Futures Program payments still “derive

from” the quality of Peterson’s previous work because the amount of money that

her network generated after she retired reflected how well she had trained her

network while she was active. The Majority agrees. Maj. Op. at 45 n.36; 46 n.39.

I, however, disagree.

In Milligan, the Ninth Circuit held that the fact that Milligan’s employer

could reduce his payments based on how many of his former customers cancelled

their insurance policies in the year after his retirement indicated that “[t]he

adjusted payment amount depended not upon Milligan’s past business activity, but

upon the successor agent’s future business efforts to retain Milligan’s customers.”

38 F.3d at 1099. The Ninth Circuit determined that that counseled in favor of

holding that the payments did not “derive” from Milligan’s prior labor. Id.

Likewise, in Gump, the Federal Circuit held that because Gump’s former

employer “could make deductions from the payments if certain large commercial

84 Case: 14-15774 Date Filed: 05/24/2016 Page: 85 of 87

policies were cancelled in the year following his last year of service,” the payments

were “unrelated to the actual quantity or quality of [Gump’s] labor.” 86 F.3d at

1128-29. Here, the fact that Peterson might receive reduced payments under the

Futures Program based entirely on wholesale purchases by members of her former

international network similarly counsels in favor of holding that the Futures

Program payments are not tied to the quality of Peterson’s prior labor and therefore

not “derived” from that labor. 51

Instead, I would hold that the Futures Program payments derive from

Peterson’s compliance with the agreement’s covenant not to compete. The

majority contends that the payments could not derive from the covenant not to

compete because Peterson broke the covenant by working with Isagenix within two

years of retiring but continued to receive payments. Maj. Op. at 42-43. But I

respectfully disagree with the suggestion that the fact that Mary Kay chose not to

pursue breach of contract remedies against Peterson following her work with

51 The Commissioner argued that the payments under both Programs were also tied to the quantity of an NSD’s service in that an NSD with 5-14 years of service and who was at least 55 years old could receive a higher payment rate the longer she worked. The Commissioner argued that this is akin to the payments in Schelble, where the insurance agent was entitled to a higher percentage of his commission based on his years of service. Schelble, 130 F.3d at 1393. In Schelble, however, the percentage rate corresponded directly with the insurance agent’s years of service. See id.(“As an agent for the Companies for over fifteen years, Mr. Schelble’s extended earnings payments were calculated using a higher percentage than if he had only been an agent for five or ten years.”). Here, in contrast, the rate at which a five-plus year NSD would receive payments was tied directly to her age, not her years of service. Thus, an NSD that retired at the age of 55 with 7 years of service would receive the same rate of Program payments (40%) as an NSD that retired at the age of 55 with 14 years of service.

85 Case: 14-15774 Date Filed: 05/24/2016 Page: 86 of 87

Isagenix, bears on whether the Futures Program payments were consideration for

the noncompetition covenant. It suggests only that Mary Kay forewent its

contractual remedies or did not believe a true breach of contract had occurred.

Any conclusion to the contrary directly conflicts with the language of the

non-compete provision itself: “In consideration of the rights and privileges

contained in the Program and other valuable consideration referenced herein,

Participant agrees to faithfully observe and comply with the . . . [non-compete]

covenants and agreements for so long as Participant is entitled to receive awards

under the Program . . . .” On these facts, I would hold that the Futures Program

payments are derived from the non-compete agreements and are therefore not

subject to the self-employment tax. See Milligan 38 F.3d at 1098 n. 6.52

In sum, I would hold that the Family Programs meet the nexus test and are

therefore subject to the self-employment tax. I therefore concur in the portion of

the Majority’s opinion holding that the Family Program payments are subject to

the self-employment tax. The Futures Program payments, on the other hand, are 52 Without more, the “[i]n consideration of” language does not dictate the conclusion that the Futures Program payments are “derived” from Peterson’s compliance with the Program’s non-compete provision and not from her prior labor. Indeed, the noncompetition provision of the Family Program contains the same “[i]n consideration of” language, and, as noted above, I would conclude that those payments do derive from Peterson’s prior Mary Kay labor. The difference, for me, is that unlike the Family Program, where the amount of Peterson’s payments depends entirely on the quality of Peterson’s efforts in her final five years of her Mary Kay employment, the amount of the Futures Program payments does not depend on Peterson’s prior Mary Kay labor. It is the absence of any nexus between the Futures Program payments and Peterson’s prior Mary Kay labor in combination with the “[i]n consideration of” language that drives me to the conclusion that the Futures Program payments “derive” from Peterson’s compliance with that Program’s non-compete provision and not from her prior labor. 86 Case: 14-15774 Date Filed: 05/24/2016 Page: 87 of 87

not, in my opinion, sufficiently related to either the quantity or the quality of

Peterson’s prior labor to meet the nexus test. Instead, those payments appear to be

derived from I therefore respectfully dissent from the portion of the Majority’s

opinion holding that the Futures Program payments are subject to the self-

employment tax.

For these reasons, I respectfully dissent in part, and I concur in part in the

judgment.